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G.R. No.


July 20, 1987


Assistant Provincial Fiscal

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and

ARMANDO VALDEZ,petitioners,

All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty.

ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of

On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts

Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents.

charged do not constitute an offense and that the proofs adduced at the investigation are not

This is a petition for review on certiorari of an order of the Court of First Instance of
Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the
Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed
by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be

sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon
S. Milo filed an opposition thereto.
Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with
Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an
order dated April 25, 1973.

charged of arbitrary detention.

Hence, this petition.

The facts are as follows:

Arbitrary Detention is committed by a public officer who, without legal grounds, detains a

On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera,
Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which

person.1 T
he elements of this crime are the following:

reads as follows:
1. That the offender is a public officer or employee.
The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and
Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY

2. That he detains a person.

DETENTION, committed as follows:

3. That the detention is without legal grounds.2
That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio
Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable
Court, accused Juan Tuvera, Sr., a barrio captain, with the aid of some other private persons,
namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by
hitting with butts of their guns and fists blows and immediately thereafter, without legal
grounds, with deliberate intent to deprive said Armando Valdez of his constitutional liberty,
accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat,
members of the police force of Mangsat, Pangasinan conspiring, confederating and helping one
another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando
Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours.(Emphasis
Dagupan City, October 12, 1972.

The ground relied upon by private respondent Tuvera for his motion to quash the information
which was sustained by respondent Judge, is that the facts charged do not constitute an
offense,3 that is, that the facts alleged in the information do not constitute the elements of
Arbitrary Detention.
The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and
Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining
petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground. No
doubt the last two elements of the crime are present.
The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be
liable for the crime of Arbitrary Detention.

The public officers liable for Arbitrary Detention must be vested with authority to detain or

Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and

order the detention of persons accused of a crime. Such public officers are the policemen and

duties of a barrio captain include the following: to look after the maintenance of public order in

other agents of the law, the judges or mayors.4

the barrio and to assist the municipal mayor and the municipal councilor in charge of the
district in the performance of their duties in such barrio;17 to look after the general welfare of

Respondent Judge Salanga did not consider private respondent Tuvera as such public officer
when the former made this finding in the questioned order:

the barrio;18 to enforce all laws and ordinances which are operative within the barrio; 19 and to
organize and lead an emergency group whenever the same may be necessary for the
maintenance of peace and order within the barrio.20

Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan
Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the
Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez

In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has
this to say about the above-mentioned powers and duties of a Barrio Captain, to wit:

arrested, it was not he who detained and jailed him because he has no such authority vested
in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan.

"Upon the barrio captain depends in the main the maintenance of public order in the barrio.
For public disorder therein, inevitably people blame him.

In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts
that the motion to quash was properly sustained for the following reasons: (1) That he did not

"In the event that there be a disturbing act to said public order or a threat to disturb public

have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio

order, what can the barrio captain do? Understandably, he first resorts to peaceful measures.

captain;6 (2) That he is neither a peace officer nor a policeman,7(3) That he was not a public

He may take preventive measures like placing the offenders under surveillance and persuading

official;8 (4) That he had nothing to do with the detention of petitioner Valdez;9 (5) That he is

them, where possible, to behave well, but when necessary, he may subject them to the full

not connected directly or indirectly in the administration of the Manaoag Police Force;10 (6)

force of law.

That barrio captains on April 21, 1972 were not yet considered as persons in authority and
that it was only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and
Heads of Barangays were decreed among those who are persons in authority;11 and that the
proper charge was Illegal Detention and Not Arbitrary Detention.


"He is a peace officer in the barrio considered under the law as a person in authority. As
such, he may make arrest and detain persons within legal limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that

We disagree.

other public officers like judges and mayors, who act with abuse of their functions, may be
guilty of this crime.22 A perusal of the powers and function vested in mayors would show that

Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later

they are similar to those of a barrio captain23 except that in the case of the latter, his territorial

named barrio captains and now barangay captains) were recognized as persons in authority. In

jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be

various cases, this Court deemed them as persons in authority, and convicted them of

and are given the authority to detain or order detention. Noteworthy is the fact that even

Arbitrary Detention.

private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio
captain, could have led the arrest of petitioner Valdez.24

In U.S. vs. Braganza,


Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal

councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass

From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr.,

through the door of the vestry and afterwards took him to the municipal building. There, they

can be held liable for Arbitrary Detention.

told him that he was under arrest. The priest had not committed any crime. The two public
officials were convicted of Arbitrary Detention.14

Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as
the facts and evidence on record show that there was no crime of Arbitrary Detention; 25 that he

In U.S. vs. Gellada,


Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman,

bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered

only sought the aid and assistance of the Manaoag Police Force;26 and that he only
accompanied petitioner Valdez to town for the latter's personal safety. 27

him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m.
of the next day when he was ordered released by the justice of the peace because he had not
committed any crime, Gellada was convicted of Arbitrary Detention. 16

Suffice it to say that the above allegations can only be raised as a defense at the trial as they
traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a
motion to quash, cannot consider facts contrary to those alleged in the information or which

do not appear on the face of the information. This is because a motion to quash is a

attempt to arrest the defendant at this place he, not having a judicial warrant, was not, under

hypothetical admission of the facts alleged in the information. 28 Matters of defense cannot be

the circumstances, authorized to make the arrest which he attempted to make.

proved during the hearing of such a motion, except where the Rules expressly permit, such as
extinction of criminal liability, prescription, and former jeopardy. 29 In the case of U.S. vs.
Perez,30 this Court held that a motion to quash on the ground that the facts charged do not
constitute an offense cannot allege new facts not only different but diametrically opposed to
those alleged in the complaint. This rule admits of only one exception and that is when such
facts are admitted by the prosecution.31lawphi1

About 8 o'clock on the night of September 6, 1908, the appellant, Isaac Samonte, and Basilio
Rabe were together in the house of one Demetrio Pandeio in the barrio of Macalalong,
jurisdiction of Pitogo, Province of Tayabas. They both left the house and met shortly afterwards
in the street (Verdades) in said barrio. On meeting there they became engaged in a quarrel, the
appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment
Rabe called "police! police!" Gregorio Glindo, a municipal policeman of Pitogo, being a patrol

Lastly, private respondent claims that by the lower court's granting of the motion to quash

duty that night in said barrio, hearing these words went to the scene, arriving just as the

jeopardy has already attached in his favor 32 on the ground that here, the case was dismissed

offended party was getting up, and attempted to arrest the appellant, saying to him: "In the

or otherwise terminated without his express consent.

name of the United States, don't move." The appellant, on seeing the policeman and hearing
this command, said: Don't come near, because I will take your life." The policeman continued

Respondent's contention holds no water. An order granting a motion to quash, unlike one of
denial, is a final order. It is not merely interlocutory and is therefore immediately appealable.
The accused cannot claim double jeopardy as the dismissal was secured not only with his
consent but at his instance.33
WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned
Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be
remanded to the appropriate trial court for further proceedings. No pronouncement as to
costs. SO ORDERED.
G.R. No. 5649
THE UNITED STATES, plaintiff-appellee,
ISAAC SAMONTE, defendant-appellant.

toward the appellant and when very near him the appellant struck at the policeman with a
knife. On account of this resistance the policeman could not arrest the appellant at that time,
so he went immediately to the house of the councilman of that barrio, Demetrio Pandenio, and
reported the matter. Pandenio ordered him to arrest the appellant. He returned to obey this
order, being followed by Pandenio. They found the appellant in a place called Mutingbayan. The
policeman attempted to take hold of the appellant, but he resisted, striking at the policeman
again with his knife. The councilman then ordered the appellant to submit himself, and on
receiving this order the appellant said: "I do not recognize anyone," and struck at the
councilman with the knife.
The appellant was not arrested on that night on account of this resistance. He did not lay
hands on to touch with his knife either the policeman or the councilman, but he did refuse to
submit himself to the authorities, and resisted arrest. The policeman did not see the appellant
knock the priest down, neither did he see him kick the said priest, but we heard the cries of
the priest calling for help, saying "police! police!" and when he arrived on the scene the priest
was getting up and freeing himself from the appellant. When the policeman heard these cries

Godofredo Reyes, for appellant.

Attorney-General Villamor, for appellee.
The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of
Tayabas on a charge of criminal attempt against an agent of the authorities, and sentenced to
one year eight months and twenty-one days of prision correctional, to pay a fine of P65, in case
of insolvency to suffer the corresponding subsidiary imprisonment, to the accessory penalties
provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court.
Counsel for appellant insists, first, that the prosecution has failed to establish beyond a
reasonable doubt that the policeman, Gregorio Glindo, attempted to arrest the accused in
Verdales Street, the place where the trouble occurred; and, second that if said policeman did

for help he was only a very short distance some 6 or 8 brazas away, and when arrived the
trouble had not terminated, although no active fighting took place after his arrival. Under
these facts and circumstances it was the duty if this police officer to stop this disturbance by
placing the defendant under arrest.
Any officer in charged with the preservation of the public peace may arrest, without a warrant,
any person who is committing, or has committed, a breach of the peace in his presence. (3
Cyc., 881; Carolina vs. McAfee, 10 L. R. A., 607; Commonwealth vs. Tobin, 11 Am., Rep., 375;
People vs. Rounds, 35 N. W., 77; Douglas vs. Barber, 28 Atl. Rep., 805.)
An offense is committed in the presence or within the view of an officer, within the meaning of
the rule authorizing an arrest without a warrant, when the officer sees the offense, although
at a distance, or hears the disturbances created thereby and proceeds at once to the scene
thereof; of the offense is continuing, or has not been consummated, at the time the arrest is
made. (3 Cyc., 886; Ramseyvs. State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs.

McAfee, 12 S. E., 435; State vs. Williams, 15 S. E., 554; and Hawkins vs. Lutton, 70 N. W.,

on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila.


Until April 7, 1948, when the petition for habeas corpusfiled with this Court was heard, the
petitioners were still detained or under arrest, and the city fiscal had not yet released or filed

In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the

against them an information with the proper courts justice.

defendant at that time, but it was his duty to do so, he having heard the priest call for help
and having arrived on the scene before the disturbance had finally ended.

This case has not been decided before this time because there was not a sufficient number of
Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting

Article 249 of the Penal Code provides that the following commit criminal attempt:


in division here in Baguio for deliberation and decision. We have not until now an official
information as to the action taken by the office of the city fiscal on the complaint filed by the
Dumlao against the petitioners. But whatever night have been the action taken by said office, if


there was any, we have to decide this case in order to lay down a ruling on the question
involved herein for the information and guidance in the future of the officers concerned.

2. Those who attack the authorities or their agents or employ force against them, or gravely
intimidate them, or offer an equally grave resistance while they are discharging the functions
of their office or on the occasion thereof.

The principal question to be determined in the present case in order to decide whether or not
the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of
manila a judicial authority within the meaning of the provisions of article 125 of the Revised

Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt

Penal Code?

against the authorities or their agents, as provided in the above article.

Article 125 of the Revised Penal Code provides that "the penalties provided in the next
The accused in this case, after an attempt had been made to arrest him by duly authorized

proceeding article shall be imposed upon the public officer or employee who shall detain any

police officer in the discharge of his duty a such, offered grave resistance by refusing to submit

person for some legal ground and shall fail to deliver such person to the proper judicial

himself to arrest and by striking at the policeman with a knife, thereby attempting to a

authorities within the period of six hours."

personal injury. Although the policeman was not wounded or touched by the accused, these
facts do not receive him from criminal responsibility.
The penalty imposed by the court below being in accordance with the law and the proofs
presented, the same is hereby affirmed, with costs against the appellant. So ordered.

Taking into consideration the history of the provisions of the above quoted article, the precept
of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court
regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority",
as used in said article, mean the courts of justices or judges of said courts vested with judicial
power to order the temporary detention or confinement of a person charged with having

G.R. No. L-2128

May 12, 1948


CITY OF MANILA,respondents.
Enrique Q. Jabile for petitioners.
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D. Guinto Lazaro for

committed a public offense, that is, "the Supreme Court and such inferior courts as may be
established by law". (Section 1, Article VIII of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal
Code formerly in force of these Islands, which penalized a public officer other than a judicial
officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to
deliver such person to the judicial authority within twenty four hours after his arrest." There
was no doubt that a judicial authority therein referred to was the judge of a court of justice
empowered by law, after a proper investigation, to order the temporary commitment or
detention of the person arrested; and not the city fiscals or any other officers, who are not
authorized by law to do so. Because article 204, which complements said section 202, of the
same Code provided that "the penalty of suspension in its minimum and medium degrees shall

Upon complaint of Bernardino Malinao, charging the petitioners with having committed the
crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners

be imposed upon the following persons: 1. Any judicial officer who, within the period
prescribed by the provisions of the law of criminal procedure in force, shall fail to release any
prisoner under arrest or to commit such prisoner formally by written order containing a
statement of the grounds upon which the same is based."

Although the above quoted provision of article 204 of the old Penal Code has not been

1947, 43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the

incorporated in the Revised Penal Code the import of said words judicial authority or officer

preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which

can not be construed as having been modified by the mere omission of said provision in the

all person charged with offenses cognizable by the Court of First Instance in provinces are

Revised Penal Code.

entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the
corresponding information against the defendant with the proper municipal court or Court of

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be
secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of
arrest, detention or confinement] shall issue but upon probable cause, to be determined by
the judge after the examination under oath or affirmation of the complaint and the witness he
may produce." Under this constitutional precept no person may be deprived of his liberty,

First Instance of Manila if the result of the investigation so warrants, in order to obtain or
secure from the court a warrant of arrest of the defendant. It is provided by a law as a
substitute, in a certain sense, of the preliminary investigation proper to avoid or prevent a
hasty or malicious prosecution, since defendant charged with offenses triable by the courts in
the City of Manila are not entitled to a proper preliminary investigation.

except by warrant of arrest or commitment issued upon probable cause by a judge after
examination of the complainant and his witness. And the judicial authority to whom the

The only executive officers authorized by law to make a proper preliminary investigation in

person arrested by a public officers must be surrendered can not be any other but court or

case of temporary absence of both the justice of the peace and the auxiliary justice of the

judge who alone is authorized to issue a warrant of commitment or provisional detention of the

peace from the municipality, town or place, are the municipal mayors who are empowered in

person arrested pending the trial of the case against the latter. Without such warrant of

such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with

commitment, the detention of the person arrested for than six hours would be illegal and in

section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city

violation of our Constitution.

fiscal may conduct under section 2, Rule 108, is the investigation referred to in the proceeding

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to
the duty of an officer after arrest without warrant, provides that "a person making arrest for

Under the law, a complaint charging a person with the commission of an offense cognizable by

legal ground shall, without unnecessary delay, and within the time prescribed in the Revised

the courts of Manila is not filed with municipal court or the Court of First Instance of Manila,

Penal Code, take the person arrested to the proper court orjudge for such action for they may

because as above stated, the latter do not make or conduct a preliminary investigation proper.

deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the

The complaint must be made or filed with the city fiscal of Manila who, personally or through

defendant and his delivery to the Court, he shall be informed of the complaint or information

one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the

filed against him. He shall also informed of the substance of the testimony and evidence

accused, but of filing with the proper court the necessary information against the accused if

presented against him, and, if he desires to testify or to present witnesses or evidence in his

the result of the investigation so warrants, and obtaining from the court a warrant of arrest or

favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to

commitment of the accused.

writing but that of the defendant shall be taken in writing and subscribed by him.
When a person is arrested without warrant in cases permitted bylaw, the officer or person
And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of

making the arrest should, as abovestated, without unnecessary delay take or surrender the

Court. According to the provision of said section, "a writ of habeas corpus shall extend any

person arrested, within the period of time prescribed in the Revised Penal Code, to the court or

person to all cases of illegal confinement or detention by which any person is illegally deprived

judge having jurisdiction to try or make a preliminary investigation of the offense (section 17,

of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in the

Rule 109); and the court or judge shall try and decide the case if the court has original

custody of an officer under process issued by a court or judge, or by virtue of a judgement or

jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of

order of a court of record, and that the court or judge had jurisdiction to issue the process,

the peace court having no original jurisdiction, and then transfer the case to the proper Court

render judgment, or make the order, the writ shall not be allowed. "Which a contrario

of First Instance in accordance with the provisions of section 13, Rule 108.

sensu means that, otherwise, the writ shall be allowed and the person detained shall be

In the City of Manila, where complaints are not filed directly with the municipal court or the
Court of First Instance, the officer or person making the arrest without warrant shall

The judicial authority mentioned in section 125 of the Revised Penal Code can not be

surrender or take the person arrested to the city fiscal, and the latter shall make the

construed to include the fiscal of the City of Manila or any other city, because they cannot

investigation above mentioned and file, if proper, the corresponding information within the

issue a warrant of arrest or of commitment or temporary confinement of a person surrendered

time prescribed by section 125 of the Revised Penal Code, so that the court may issue a

to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs.

warrant of commitment for the temporary detention of the accused. And the city fiscal or his

Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30,

assistants shall make the investigation forthwith, unless it is materially impossible for them to

do so, because the testimony of the person or officer making the arrest without warrant is in

ANTONIO L. SANCHEZ, petitioner,

such cases ready and available, and shall, immediately after the investigation, either release


the person arrested or file the corresponding information. If the city fiscal has any doubt as to

The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional

the probability of the defendant having committed the offense charged, or is not ready to file
the information on the strength of the testimony or evidence presented, he should release and
not detain the person arrested for a longer period than that prescribed in the Penal Code,
without prejudice to making or continuing the investigation and filing afterwards the proper
information against him with the court, in order to obtain or secure a warrant of his arrest. Of
course, for the purpose of determining the criminal liability of an officer detaining a person for

Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity
last six respondents in their official capacities as members of the State Prosecutor's
Office), respondents.

more than six hours prescribed by the Revised Penal Code, the means of communication as
well as the hour of arrested and other circumstances, such as the time of surrender and the

Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.

material possibility for the fiscal to make the investigation and file in time the necessary
information, must be taken into consideration.

The Solicitor General for respondents.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised
Penal Code, would be to authorize the detention of a person arrested without warrant for a
period longer than that permitted by law without any process issued by a court of competent
jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an


information or prosecuting the person arrested and release him, after the latter had been
illegally detained for days or weeks without any process issued by a court or judge.

There is probably no more notorious person in the country today than Mayor Antonio L.
Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the

A peace officer has no power or authority to arrest a person without a warrant upon complaint
of the offended party or any other person, except in those cases expressly authorized by law.
What he or the complainant may do in such case is to file a complaint with the city fiscal of
Manila, or directly with the justice of the peace courts in municipalities and other political
subdivisions. If the City Fiscal has no authority, and he has not, to order the arrest even if he

verdict has already been rendered by many outraged persons who would immediately impose
on him an angry sentence. Yet, for all the prejudgments against him, he is under our
Constitution presumed innocent as long as the contrary has not been proved. Like any other
person accused of an offense, he is entitled to the full and vigilant protection of the Bill of

finds, after due investigation, that there is a probability that a crime has been committed and
the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a

Sanchez has brought this petition to challenge the order of the respondent judge denying his

person charged with an offense upon complaint of the offended party or other persons even

motion to quash the informations for rape with homicide filed against him and six other

though, after investigation, he becomes convinced that the accused is guilty of the offense

persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a


just and impartial judgment from this Court.

In view of all the foregoing, without making any pronouncement as to the responsibility of the

The pertinent facts are as follows:

officers who intervened in the detention of the petitioners, for the policeman Dumlao may have
acted in good faith, in the absence of a clear cut ruling on the matter in believing that he had
complied with the mandate of article 125 by delivering the petitioners within six hours to the
office of the city fiscal, and the latter might have ignored the fact that the petitioners were
being actually detained when the said policeman filed a complaint against them with the city
fiscal, we hold that the petitioners are being illegally restrained of their liberty, and their
release is hereby ordered unless they are now detained by virtue of a process issued by a
competent court of justice. So ordered.
G.R. Nos. 111771-77 November 9, 1993

On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate
charges against several persons, including the petitioner, in connection with the rape-slay of
Mary Eileen Sarmenta and the killing of Allan Gomez.
Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted
a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was
represented by his counsel, Atty. Marciano Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner
requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was

served on Sanchez in the morning of August 13,1993, and he was immediately taken to the

arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being

said camp.

charged with seven homicides arising from the death of only two persons; 5) the informations
are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as

At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and

a public officer, he can be tried for the offense only by the Sandiganbayan.

SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in
the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest

The respondents submitted a Comment on the petition, to which we required a Reply from the

status" and taken to the Department of Justice in Manila.

petitioner within a non-extendible period of five days. 1 The Reply was filed five days late.


Court may consider his non-compliance an implied admission of the respondents' arguments
The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty.
Salvador Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on
August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch

or a loss of interest in prosecuting his petition, which is a ground for its dismissal.
Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on
the basis of the arguments before us.
The Preliminary Investigation.

7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8,
in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention

The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention

Center, Camp Crame, where he remains confined.

that he was not accorded the right to present counter-affidavits.

On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of

During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty.

Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio

Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit,

Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and


killing of Mary Eileen Sarmenta.

Atty. Brion, Jr.:
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the
arrest of all the accused, including the petitioner, in connection with the said crime.

[W]e manifest that after reviewing them there is nothing to rebut or countermand all these
statements as far as Mayor Sanchez is concerned, We are not going to submit any counter-

The respondent Secretary of Justice subsequently expressed his apprehension that the trial of


the said cases might result in a miscarriage of justice because of the tense and partisan
atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial
court with one of the accused. This Court thereupon ordered the transfer of the venue of the
seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet

ACSP Zuo to Atty. Brion:


xxx xxx xxx

On September 10, 1993, the seven informations were amended to include the killing of Allan

Q. So far, there are no other statements.

Gomez as an aggravating circumstance.

A. If there is none then, we will not submit any counter-affidavit because we believe there is
On that same date, the petitioner filed a motion to quash the informations substantially on the

nothing to rebut or countermand with all these statements.

grounds now raised in this petition. On September 13, 1993, after oral arguments, the
respondent judge denied the motion. Sanchez then filed with this Court the instant petition

Q. So, you are waiving your submission of counter-affidavit?

for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction.
A. Yes, your honor, unless there are other witnesses who will come up soon.
The petitioner argues that the seven informations filed against him should be quashed
because: 1) he was denied the right to present evidence at the preliminary investigation; 2)
only the Ombudsman had the competence to conduct the investigation; 3) his warrantless

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion

Just as the accused may renounce the right to be present at the preliminary investigation 5, so

that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was

may he waive the right to present counter-affidavits or any other evidence in his defense.

At any rate, it is settled that the absence of a preliminary investigation does not impair the
During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel,

validity of the information or otherwise render the same defective and neither does it affect the

this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and

jurisdiction of the court over the case or constitute a ground for quashing the information. 6

Malabanan, and told him he could submit counter-affidavits on or before August 27, 1993. The
following exchange ensued:

If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of
the accused, order an investigation or reinvestigation and hold the proceedings in the criminal
case in abeyance.

In the case at bar, however, the respondent judge saw no reason or need for

such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her
For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y


Roxas and the sworn statement of SPO3 Vivencio Malabanan y Angeles.

Jurisdiction of the Ombudsman
Do I understand from you that you are again waiving the submission of counter-affidavit?
Invoking the case of Deloso v. Domingo,
Atty. Panelo:

the petitioner submits that the proceedings

conducted by the Department of Justice are null and void because it had no jurisdiction over
the case. His claim is that it is the Office of the Ombudsman that is vested with the power to
conduct the investigation of all cases involving public officers like him, as the municipal mayor


of Calauan, Laguna.

So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for

On the other hand, there is no support for the petitioner's subsequent manifestation that his
counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was
not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio
Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the abovequoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993,
was not Atty. Brion but Atty. Panelo.
The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel.
During the entire proceedings, he remained quiet and let this counsel speak and argue on his
behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now
question his representation by this lawyer as unauthorized and inofficious.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to
investigate and prosecute, any illegal act or omission of any public official. However, as we held
only two years ago in the case ofAguinaldo v. Domagas,

this authority "is not an exclusive

authority but rather a shared or concurrent authority in. respect of the offense charged."
Petitioners finally assert that the information and amended information filed in this case
needed the approval of the Ombudsman. It is not disputed that the information and amended
information here did not have the approval of the Ombudsman. However, we do not believe that
such approval was necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court
held that the Ombudsman has authority to investigate charges of illegal or omissions on the
part of any public official, i.e., any crime imputed to a public official. It must, however, be
pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of
any public official" (191 SCRA at 550) isnot an exclusive authority but rather a shared or
concurrent authority in respect of the offense here charged, i.e., the crime of sedition. Thus,
the non-involvement of the office of the Ombudsman in the present case does not have any
adverse legal consequence upon the authority the panel of prosecutors to file and prosecute
the information or amended information.

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent
cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating
officer shall base his resolution on the evidence presented by the complainant.

In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition,


and the Presidential Commission on Good

Government, in ill-gotten wealth cases, 11 may conduct the investigation,

The Arrest

Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing
that, on the basis of the sworn statements of the two state witnesses, petitioner had been

Was petitioner Sanchez arrested on August 13, 1993?


"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person

We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the

into custody in order that he may be bound to answer for the commission of an offense. Under

Rules of Court, providing as follows:

Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be
arrested or by his voluntary submission to the custody of the person making the arrest.

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without
a warrant, arrest a person:

Application of actual force, manual touching of the body, physical restraint or a formal
declaration of arrest is not, required. It is enough that there be an intent on the part of one of

(a) When, in his presence, the person to be arrested has committed, is actually committing, or

the parties to arrest the other and an intent onthe part of the other to submit, under the belief

is attempting to commit an offense;

and impression that submission is necessary.


(b) When an offense has in fact just been committed and he has personal knowledge of facts
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-

indicating that the person to be arrested has committed it; and

invitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for

(c) When the person to be arrested is a prisoner who has escapes from a penal establishment
or place where he is serving final judgment or temporarily confined while his case is pending,

In Babst v. National Intelligence Board


this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and
answer some questions, which the person invited may heed or refuse at his pleasure, is not
illegal or constitutionally objectionable. Under certain circumstances, however, such an
invitation can easily assume a different appearance. Thus, where the invitation comes from a
powerful group composed predominantly of ranking military officers issued at a time when the
country has just emerged from martial rule and when the suspension of the privilege of the
writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a

or has escaped while being transferred from one confinement to another.

It is not denied that the arresting officers were not present when the petitioner allegedly
participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither
did they have any personal knowledge that the petitioner was responsible therefor because the
basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape
and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before
the date of the arrest, it cannot be said that the offense had "in fact just been committed"
when the petitioner was arrested.

military camp, the same can be easily taken,not as a strictly voluntary invitation which it
purports to be, but as an authoritative command which one can only defy at his peril. . . .

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the

(Emphasis supplied)

Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of
the warrant of arrest it issued on August 26, 1993 against him and the other accused in

In the case at bar, the invitation came from a high-ranking military official and the

connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.

investigation of Sanchez was to be made at a military camp. Although in the guise of a request,
it was obviously a command or an order of arrest that the petitioner could hardly he expected

Even on the assumption that no warrant was issued at all, we find that the trial court still

to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal

lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused

clothes and slippers only) with the officers who had come to fetch him.

objects to the jurisdiction of the court over his person, he may move to quash the information,
but only on that ground. If, as in this case, the accused raises other grounds in the motion to

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial
investigation" are applicable even to a person not formally arrested but merely "invited" for

quash, he is deemed to have waived that objection and to have submitted his person to the
jurisdiction of that court. 14

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest

Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal

status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary

Cases Nos. 93-124634 to 93-124637 for violation of R.A No. 6713.


Pending the issuance of

the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification

crime of rape with homicide. Therefore, there will be as many crimes of rape with homicide as

for his detention.

there are rapes committed.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the

In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the

corresponding warrant of arrest, against a person invalidly detained will cure the defect of that

highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its

detention or at least deny him the right to be released because of such defect. * Applicable by

character as an independent offense, but assumes a new character, and functions like a

analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:

qualifying circumstance. However,by fiction of law, it merged with rape to constitute an

constituent element of a special complex crime of rape with homicide with a specific penalty

Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a court or

which is in the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of
the application of the death penalty by the Constitution).

judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be

It is clearly provided in Rule 110 of the Rules of Court that:

allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or order. Nor shall,
anything in this rule be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines or of a person suffering imprisonment under lawful judgment.
In one case,


the petitioner, sued on habeas corpus on the ground that she had been arrested

by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant
specifically naming her had been issued, thus validating her detention. While frowning at the
tactics of the respondents, the Court said:

complies with the requirements of the Constitution and the Rules of Court regarding the
particular description of the person to be arrested. While the first warrant was unquestionably
void, being a general warrant, release of the petitioner for that reason will be a futile act as it
will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning
her to the same prison she will just have left. This Court will not participate in such a
meaningless charade.

the Umil case.

only in those cases in which existing laws prescribe a simple punishment for various offenses.
Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the
Revised Penal Code.
The petitioner and his six co-accused are not charged with only one rape committed by him in
conspiracy with the other six. Each one of the seven accused is charged with having himself

The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest

The same doctrine has been consistently followed by the Court,

Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except

raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other
words, the allegation of the prosecution is that the girl was raped seven times, with each of the
seven accused taking turns in abusing her with the assistance of the other six. Afterwards,
their lust satisfied, all seven of them decided to kill and thus silence Sarmenta.
Every one of the seven accused is being charged separately for actually raping Sarmenta and
later killing her instead of merely assisting the petitioner in raping and then slaying her. The
separate informations filed against each of them allege that each of the seven successive rapes


is complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan
more recently in


The Informations

Gomez by her seven attackers. The separate rapes were committed in succession by the seven
accused, culminating in the slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven
times, but the informations do not make such a suggestion. It is the petitioner who does so

The petitioner submits that the seven informations charging seven separate homicides are

and is thus hoist by his own petard.

absurd because the two victims in these cases could not have died seven times.
The Alleged Discrimination
This argument was correctly refuted by the Solicitor General in this wise:
The charge of discrimination against the petitioner because of the non-inclusion of Teofilo
Thus, where there are two or more offenders who commit rape, the homicide committed on the
occasion or by reason of each rape, must be deemed as a constituent of the special complex

Alqueza and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear

(2) Other offenses or felonies committed by public officers and employees in relation to their

to be guilty, he nevertheless cannot be compelled to include in the information a person

office, including those employed in government-owned or controlled corporations, whether

against whom he believes no sufficient evidence of guilt exists.


The appreciation of the

evidence involves the use of discretion on the part of the prosecutor, and we do not find in the
case at bar a clear showing by the petitioner of a grave abuse of such discretion.


The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in
special cases by the President of the Philippines.


But even this Court cannot order the

prosecution of a person against whom the prosecutor does not find sufficient evidence to

simple or complexed with other crimes, where the penalty prescribed by law is higher
than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. . . .
(Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged obviously does not
fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by
paragraph (2) because it is not an offense committed in relation to the office of the petitioner.

support at least a prima facie case. The courts try and absolve or convict the accused but as a
rule have no part in the initial decision to prosecute him.

In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as

The possible exception is where there is an unmistakable showing of a grave abuse of

discretion that will justify judicial intrusion into the precincts of the executive. But in such a

[T]he relation between the crime and the office contemplated by the Constitution is, in our

case the proper remedy to call for such exception is a petition for mandamus, not certiorari or

opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to

prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of

be such that, in the legal sense, the offense cannot exist without the office. In other words, the

another person as a co-accused in the same case must first avail itself of other adequate

office must be a constituent element of the crime as defined in the statute, such as, for

remedies such as the filing of a motion for such inclusion. 23

instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised
Penal Code.

At any rate, it is a preposterous contention that because no charges have been filed against
Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be

Public office is not of the essence of murder. The taking of human life is either murder or


homicide whether done by a private citizen or public servant, and the penalty is the same
except when the perpetrator. being a public functionary took advantage of his office, as alleged

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were incumbent public officials or
employees at the time of the alleged commission of the crimes, the cases against them should
come under the jurisdiction of the Sandiganbayan and not of the regular courts. This
contention was withdrawn in his Reply but we shall discuss it just the same for the guidance

in this case, in which event the penalty is increased.

But the use or abuse of office does not adhere to the crime as an element; and even as an
aggravating circumstance, its materiality arises not from the allegations but on the proof, not
from the fact that the criminals are public officials but from the manner of the commission of
the crime

of all those concerned.

There is no direct relation between the commission of the crime of rape with homicide and the
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

petitioner's office as municipal mayor because public office is not an essential element of the
crime charged. The offense can stand independently of the office. Moreover, it is not even
alleged in the information that the commission of the crime charged was intimately connected
with the performance of the petitioner's official functions to make it fall under the exception
laid down in People v. Montejo.


a) Exclusive original jurisdiction in all cases involving:

In that case, a city mayor and several detectives were charged with murder for the death of a
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and

suspect as a result of a "third degree" investigation held at a police substation. The appearance

Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised

of a senator as their counsel was questioned by the prosecution on the ground that he was

Penal Code:

inhibited by the Constitution from representing them because they were accused of an offense
committed in relation to their office. The Court agreed. It held that even if their position was
not an essential ingredient of the offense, there was nevertheless an intimate connection

between the office and the offense, as alleged in the information, that brought it within the


definition of an offense "committed in relation to the public office."


As Chief Justice Concepcion said:










AL., petitioners,


It is apparent from these allegations that, although public office is not an element of the crime


of murder in abstract, as committed by the main respondents herein, according to the


amended information, the offense therein charged is intimately connected with their respective

AL., respondents.

offices and was perpetrated while they were in the performance, though improper or irregular,
of their official functions. Indeed they had no personal motive to commit the crime and they
would not have committed it had they not held their aforesaid offices. The co-defendants of


respondent Leroy S. Brown, obeyed his instructions because he was their superior officer, as
Mayor of Basilan City. (Emphasis supplied).
We have read the informations in the case at bar and find no allegation therein that the crime


of rape with homicide imputed to the petitioner was connected with the discharge of his
functions as municipal mayor or that there is an "intimate connection" between the offense

This was originally a petition for prohibition with preliminary injunction which was superseded

and his office. It follows that the said crime, being an ordinary offense, is triable by the regular

by the amended and supplemental petition for prohibition with preliminary injunction filed by

courts and not the Sandiganbayan.

petitioners on March 3, 1983, seeking to prohibit the respondents (a) from issuing subpoenas
or letters of invitation to petitioners and interrogating them, and (b) from filing libel suits on


matters that have been the subject of inquiry by respondent National Intelligence Board (NIB).

As above demonstrated, all of the grounds invoked by the petitioner are not supported by the

Petitioners are columnists, feature article writers and reporters of various local publications. At

facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In
consequence, the respondent judge, who has started the trial of the criminal cases against the
petitioner and his co-accused, may proceed therewith without further hindrance.
It remains to stress that the decision we make today is not a decision on the merits of the
criminal cases being tried below. These will have to be decided by the respondent judge in
accordance with the evidence that is still being received. At this time, there is yet no basis for

different dates since July, 1980, some of them have allegedly been summoned by military
authorities who have subjected them to sustained interrogation on various aspects of their
works, feelings, sentiments, beliefs, associations and even their private lives. Typical of the
letters received by the petitioners from respondent NIB is that addressed to petitioner Arlene
Babst, dated December 20,1982, which reads:

judgment, only uninformed conjecture. The Court will caution against such irrelevant public
speculations as they can be based only on imperfect knowledge if not officious ignorance.

Pursuant to the authority vested in me by law, you are hereby requested to appear before this
Special Committee at Philippine Army Officer's Clubhouse, Fort Bonifacio, Metro Manila

WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue

with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and

(sketch attached), 9:00 A.M., December 22, 1982, to shed light on confidential matters being
looked into by this Committee.

101147 and to decide them with deliberate dispatch.

Your failure to appear on the specified date and place shall be considered as a waiver on your

part and this Committee will be constrained to proceed in accordance with law.

G.R. No. L-62992 September 28, 1984

Very truly yours,


The assailed proceedings have come to an end. The acts sought to be prohibited (i.e., the

Brig. General, AFP (Ret.)

issuance of letters of invitation petition and subsequent interrogations) have therefore been


abated, thereby rendering the petition moot and academic as regards the aforesaid matters.

Aside from the interrogations, a criminal complaint for libel was filed by Brig. Gen. Artemio

Be that as it may, it is not Idle to note that ordinarily, an invitation to attend a hearing and

Tadiar, Jr. on February 9, 1983 with the Office of the City Fiscal, Manila, against petitioners

answer some questions, which the person invited may heed or refuse at his pleasure, is not

Domini Torrevillas-Suarez, editor of the Panorama, and Ma. Ceres Doyo based on an article

illegal or constitutionally objectionable. Under certain circumstances, however, such an

written by Doyo and published in the March 28, 1982 issue of the Panorama, on which the

invitation can easily assume a different appearance. Thus, where the invitation comes from a

author had been interrogated by respondents. The complaint included an staggering P10

powerful group composed predominantly of ranking military officers issued at a time when the

million claim for damages. (An information for libel has since been filed with the Regional Trial

country has just emerged from martial rule and when the suspension of the privilege of the

Court of the National Capital Region against Suarez and Doyo.)

writ of habeas corpus has not entirely been lifted and the designated interrogation site is a
military camp, the same can easily be taken, not as a strictly voluntary invitation which it

Petitioners maintain that the respondents have no jurisdiction over the proceedings which are
violative of the constitutional guarantee on free expression since they have the effect of
imposing restrictive guidelines and norms on mass media; that they are a punitive ordeal or
subsequent punishment of petitioners for lawful publications; that they amount to a system of
censorship, curtailing the "free flow of information and petition and opinion," indispensable to

purports to be, but as an authoritative command which one can only defy at his peril,
especially where, as in the instant case, the invitation carries the ominous seaming that
"failure to appear . . . shall be considered as a waiver . . . and this Committee will be
constrained to proceed in accordance with law." Fortunately, the NIB director general and
chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation.

the right of the people to know matters of public concern guaranteed in Section 6 of Article IV
of the Constitution; and that they constitute intrusions into spheres of individual liberty.

Similarly, prohibition will not issue in respect of the libel charges now pending in court against

Regarding the libel charge against Suarez and Doyo, petitioners denounce the filing as

two of the petitioners and similar suits that might be filed.

instituted with intent to intimidate and based on illegally obtained evidence, referring to the
matters inquired into by respondents in previously conducted, allegedly illegal interrogations.

Firstly, the writ of prohibition is directed against a tribunal, board or person acting without or
in excess of jurisdiction or with grave abuse of discretion vis-a-vis certain proceedings pending

In their comment, respondents counter that no issue of jurisdiction exists since they do not

before it. The libel cases adverted to are not pending before respondent NIB or any other

pretend to exercise jurisdiction over the petitioners; that what respondents have sent to


petitioners were neither subpoenas nor summonses, but mere invitations to dialogues which
were completely voluntary, without any compulsion employed on petitioners; that the dialogues
themselves were designed simply to elicit information and exchange Ideas and that the
expression of personal preferences and opinions by members of the respondent Board is not
equivalent to the imposition of norms and guidelines to be followed by petitioners. Relative to
the libel case, respondents contend that petitioners have no cause of action against respondent
Board since respondent General Tadiar is not a member of respondent Board and has filed the
libel case in his personal capacity; and the libel case is not pending before any of the
respondents. Furthermore, respondents aver that this case has been rendered moot and
academic because the proceedings before NIB Special Committee No. 2 (which conducted the
interrogations) have already been ordered terminated by General Fabian C. Ver in his capacity
as Director General and Chairman of the NIB, and said proceedings have in fact been
The petition is premised upon the alleged illegality and unconstitutionality of the issuance by
respondent NIB to petitioners of letters of invitation, their subsequent interrogation, and the
filing of the aforementioned libel suit.
Under the circumstances of the case, the petition cannot be granted.

Secondly, the issue of validity of the libel, charges by reason of their alleged collision with
freedom of expression, is a matter that should be raised in the proper forum, i.e., before the
court where the libel cases are pending or where they may be filed. The same rule applies to
the issue of admissibility as evidence of matters that have been elicited in the course of an
inquiry or interrogation conducted by respondent NIB, which petitioners claim to have been
illegally obtained.
Finally, the right to seek redress when libeled is a personal and individual privilege of the
aggrieved party, and no one among the respondent officials has the authority to restrain any of
his subordinates who has been libeled from vindicating his right by instituting a libel suit.
Brig. Gen. Tadiar has filed the libel case against petitioners Suarez and Doyo in his personal
capacity. Moreover, he is not even a member of respondent NIB. And the NIB does not appear
to have anything to do with Gen. Tadiar's private right to complain of libel.
WHEREFORE, the petition is dismissed.
G.R. No. 117321. February 11, 1998]


PHILIPPINES, plaintiff-appellee, vs. HERSON


at Barangay Malinao in Atimonan. Forthwith, they proceeded to the said place and found him

VERZO, accused-appellant.

sprawled on the ground with fourteen stab wounds in different parts of his body.


Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at


Barangay Malinao, Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded
to the scene of the crime and recovered a blue sidecar which they brought back with them to
their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando
Alandy invited appellant in connection with the instant case and with respect to two other

May the confession of an accused, given before a police investigator upon invitation and

robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an

without the benefit of counsel, be admissible in evidence against him?

explicit account of what actually transpired in the case at bar. He narrated that he and coaccused Amido were responsible for the loss of the motorcycle and the consequent death of

Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway
robbery with murder before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province,
under an information[1] dated February 8, 1989, which reads as follows:
That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay
Tinandog, Municipality of Atimonan, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating

Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of
Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the
Lucena PNP immediately dispatched a team to retrieve the same.
After admitting that it was purchased from both the accused and upon failure to present any
document evidencing the purported sale, Teves voluntarily surrendered it to the police who
turned it over, together with the sidecar, to the Atimonan Police Station for safekeeping.

together and mutually helping each other, armed with bladed and pointed weapons, with
intent to gain, by means of force, violence, threats and intimidation, did then and there

Lt. Carlos, on cross-examination, testified that when he invited appellant to their

wilfully, unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a

headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter

Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961 valued at THIRTY

that he was a suspect, not only in the instant case, but also in two other robbery cases

THOUSAND PESOS (P30,000.00) Philippine currency, belonging to the said Freddie Saavedra,

allegedly committed in Lucena City. In the belief that they were merely conversing inside the

to the damage and prejudice of the latter in the aforesaid amount; and that on the occasion of

police station, he admitted that he did not inform appellant of his constitutional rights to

said robbery and by reason thereof, the said accused, with intent to kill, with evident

remain silent and to the assistance of counsel; nor did he reduce the supposed confession to

premeditation and treachery, and taking advantage of their superior strength and in


pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously attack,
assault and stab with the said weapon said Freddie Saavedra, thereby inflicting upon the latter
multiple stab wounds on the different parts of his body, which directly caused his death.

Appellant, on the other hand, alleged that he had no participation in the offense charged and
contended that his only involvement in the matter was the referral of accused Amido to
Teves. He recounted that sometime in December 1988, Amido sought him at his house and

Contrary to law.

told him that the motorcycle he was riding on was being offered for sale. Upon proof shown
that it was indeed registered under Amidos name, he accompanied the latter to Manila on

On arraignment, the accused pleaded not guilty to the charge.

The relevant facts established by the prosecution are as follows:
On December 5, 1988, at about 7:00 oclock p.m., tricycle driver Freddie Saavedra went to see
his wife, Delfa, at Our Lady of Angels Academy in Atimonan, Quezon, where the latter is a third
year high school student, to inform her that he will drive both accused to Barangay
Maligaya. It was the last time, however, that Freddie was seen alive. When the latter failed to
return that evening, Delfa, as early as 4:30 oclock a.m. of December 6, 1988 inquired on his
whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel
Villarama revealed that the lifeless body of her husband was discovered on the diversion road

board the said motorcycle and they approached Antonio Carandang. The latter, thereafter,
brought them to a certain Perlita Aguilar and Danilo Teves with whom the sale was finally
consummated. He allegedly received P150.00 as his commission.
Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation,
he was at Barangay Malusak, Atimonan on the day in question, some seven kilometers from
the town, busy assisting in the renovation of his mothers house. He narrated that the victim
was his friend and, therefore, he could not have participated in the gruesome death of the
In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion
of which reads:

WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY

As used in this Act, custodial investigation shall include the practice of issuing an invitation

beyond reasonable doubt of the crime of Highway Robbery with Murder and hereby sentences

to a person who is investigated in connection with an offense he is suspected to have

him to suffer an imprisonment of RECLUSION PERPETUA. He is further ordered to indemnify

committed, without prejudice to the liability of the inviting officer for any violation of law.

the family of the deceased in the amount of Thirty Thousand Pesos (P30,000.00).
Custodial investigation involves any questioning initiated by law enforcement authorities after a
Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him

person is taken into custody or otherwise deprived of his freedom of action in any significant

and the Provincial Warden of Quezon, Provincial Jail, Lucena City, is hereby ordered to release

manner. The rules on custodial investigation begin to operate as soon as the investigation

from custody the person of said Lito Amido, unless he is being detained thereat for some other

ceases to be a general inquiry into an unsolved crime and begins to focus a particular

lawful cause.

suspect, the suspect is taken into custody, and the police carries out a process of
interrogations that tends itself to eliciting incriminating statements that the rule begins to



Appellant assails the finding of conviction despite failure of the prosecution to positively

Furthermore, not only does the fundamental law impose, as a requisite function of the

identify him as the culprit of the crime and to present clear and convincing circumstantial
evidence that would overcome his innocence.

correspondingly be a meaningful communication to and understanding thereof by the

accused. A mere perfunctory reading by the constable of such rights to the accused would

In light of the above facts and circumstances, the appealed decision is set aside and appellant
acquitted on the ground that his constitutional rights were violated.
It is well-settled that the Constitution abhors an uncounselled confession or admission and
whatever information is derived therefrom shall be regarded as inadmissible in evidence
against the confessant. Article III, Section 12, paragraphs (1) and (3) of the Constitution
x x x

investigating officer, the duty to explain those rights to the accused but also that there must

thus not suffice.[7]

Under the Constitution and existing law and jurisprudence, a confession to be admissible
must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the
assistance of competent and independent counsel; (3) it must be express; and (4) it must be in
While the Constitution sanctions the waiver of the right to counsel, it must, however, be



voluntary, knowing and intelligent, and must be made in the presence and with the
assistance of counsel.[9] To reiterate, in People v. Javar,[10] it was ruled therein that any
statement obtained in violation of the constitution, whether exculpatory or inculpatory, in

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the

whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of

right to be informed of his right to remain silent and to have competent and independent

truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence,

counsel preferably of his own choice. If the person cannot afford the services of counsel, he

regardless of the absence of coercion or even if it had been voluntarily given.

must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.

The records of this case do not indicate that appellant was assisted by counsel when he made
such waiver, a finding evident from the testimony of Lt. Santos on cross-examination, thus:




(3) Any confession or admission obtained in violation of this or the preceding section shall be

Now, when you brought Herson Tan to the Headquarters, did you tell him that he is one of

the suspects in the robbery slain (sic) that took place in Atimonan on December 5, 1988?

inadmissible against him.

Republic Act No. 7438 (R.A. No. 7438), [4] approved on May 15, 1992, reenforced the

Yes, sir, and he was also suspect to the robbery case which was investigated at Lucena

Police Station. There were two (2) cases which were investigated on Herson Tan.

constitutional mandate protecting the rights of persons under custodial investigation, a

pertinent provision[5] of which reads:

Now, so in addition to the Atimonan case, you also took Herson Tan to your custody in

connection with another case that happened in Lucena?

Yes, sir.

And you happened to have Herson Tan in your list as suspect in both cases because

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca,
Quezon (Branch 62) is REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is

Herson was previously incarcerated at Lucena City Jail in connection with a certain case, is it

hereby ACQUITTED of the crime charged and his immediate release from confinement is
hereby ordered, unless there is any other lawful cause for continued detention. Costs de oficio.


Yes, sir.

Just for curiosity sake, you invited him in your headquarters, is that what happened in

G.R. No. 14639


this case?

JUSTO LUKBAN, ET AL., respondents.


Yes, sir.
Alfonso Mendoza for petitioners.

And it just happened that without applying third degree to him he gave you that

City Fiscal Diaz for respondents.


Yes, sir.

Did you notify him of his constitutional right to counsel before you propounded questions

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with
in this modern epoch of triumphant democracy, yet, after all, the cause presents no great

to him?

difficulty if there is kept in the forefront of our minds the basic principles of popular
government, and if we give expression to the paramount purpose for which the courts, as an

No, sir, because we are asking question only to him.

Before propounding question or information you sought to elicit from him, did you inform

independent power of such a government, were constituted. The primary question is - Shall the

him of his constitutional right not to testify against himself because he is a suspect in these
two (2) cases?

judiciary permit a government of the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of

No, sir, because we were just conversing.[11] (Underscoring supplied)

the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a number of years in

The evidence for the prosecution shows that when appellant was invited for questioning at the

the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept

police headquarters, he allegedly admitted his participation in the crime. This will not suffice

confined to their houses in the district by the police. Presumably, during this period, the city

to convict him, however, of said crime. The constitutional rights of appellant, particularly the

authorities quietly perfected arrangements with the Bureau of Labor for sending the women to

right to remain silent and to counsel, are impregnable from the moment he is investigated in

Davao, Mindanao, as laborers; with some government office for the use of the coastguard

connection with an offense he is suspected to have committed, even if the same be initiated by

cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate,

mere invitation. This Court values liberty and will always insist on the observance of basic

about midnight of October 25, the police, acting pursuant to orders from the chief of police,

constitutional rights as a condition sine qua non against the awesome investigative and

Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the

prosecutory powers of government.[12]

houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers
that awaited their arrival. The women were given no opportunity to collect their belongings,





conviction. Considering












investigation which fell short of compliance with constitutional safeguards, we are constrained
to acquit the appellant.

and apparently were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in Mindanao. They had
not been asked if they wished to depart from that region and had neither directly nor indirectly
given their consent to the deportation. The involuntary guests were received on board the

steamers by a representative of the Bureau of Labor and a detachment of Constabulary

when pleading to the original petition copied a telegram from the Mayor of the city of Manila to

soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of

the provincial governor of Davao and the answer thereto, and telegrams that had passed

October 25.

between the Director of Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their life in Mindanao and did

The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano
Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the
case, had no previous notification that the women were prostitutes who had been expelled from
the city of Manila. The further happenings to these women and the serious charges growing
out of alleged ill-treatment are of public interest, but are not essential to the disposition of this
case. Suffice it to say, generally, that some of the women married, others assumed more or less
clandestine relations with men, others went to work in different capacities, others assumed a
life unknown and disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting
in to Davao, the attorney for the relatives and friends of a considerable number of the
deportees presented an application for habeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was made to include all of
the women who were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women were illegally restrained
of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, and by certain unknown parties. The writ was made returnable before the
full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the writ should not be
granted because the petitioners were not proper parties, because the action should have been
begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because
the respondents did not have any of the women under their custody or control, and because
their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an
exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at
good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out
of Manila without their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city
of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an
hacendero of Davao, to bring before the court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense.
On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme
Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of
the persons in whose behalf the writ was issued were produced in court by the respondents. It

not wish to return to Manila. Respondents Sales answered alleging that it was not possible to
fulfill the order of the Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had married or signed
contracts as laborers. Respondent Yigo answered alleging that he did not have any of the
women under his control and that therefore it was impossible for him to obey the mandate.
The court, after due deliberation, on December 10, 1918, promulgated a second order, which
related that the respondents had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed that those of the women not in
Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on
January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It
was further stated that the question of whether the respondents were in contempt of court
would later be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken before the
clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance
of Davao acting in the same capacity. On January 13, 1919, the respondents technically
presented before the Court the women who had returned to the city through their own efforts
and eight others who had been brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts and further endeavored to
account for all of the persons involved in the habeas corpus. In substance, it was stated that
the respondents, through their representatives and agents, had succeeded in bringing from
Davao with their consent eight women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila, transportation fee, renounced the right
through sworn statements; that fifty-nine had already returned to Manila by other means, and
that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked
the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city
of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city
fiscal requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do so.

has been shown that three of those who had been able to come back to Manila through their
own efforts, were notified by the police and the secret service to appear before the court. The

One fact, and one fact only, need be recalled - these one hundred and seventy women were

fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him

isolated from society, and then at night, without their consent and without any opportunity to

consult with friends or to defend their rights, were forcibly hustled on board steamers for

Law defines power. Centuries ago Magna Charta decreed that - "No freeman shall be taken, or

transportation to regions unknown. Despite the feeble attempt to prove that the women left

imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or

voluntarily and gladly, that such was not the case is shown by the mere fact that the presence

exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful

of the police and the constabulary was deemed necessary and that these officers of the law

judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer

chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact

to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at

impossible to refute and practically admitted by the respondents.

Large, 7.) No official, no matter how high, is above the law. The courts are the forum which
functionate to safeguard individual liberty and to punish official transgressors. "The law," said

With this situation, a court would next expect to resolve the question - By authority of what
law did the Mayor and the Chief of Police presume to act in deporting by duress these persons
from Manila to another distant locality within the Philippine Islands? We turn to the statutes
and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and punishment by a court of
justice of any person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New
York and other States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper
colony, it is done pursuant to some law or order. But one can search in vain for any law, order,

Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same
high tribunal in another case, "that one man may be compelled to hold his life, or the means of
living, or any material right essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the
writ of habeas corpus, and makes clear why we said in the very beginning that the primary
question was whether the courts should permit a government of men or a government of laws
to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of
police of that city to force citizens of the Philippine Islands - and these women despite their

The first is an optional but rather slow process by which the aggrieved party may recoup

being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected

money damages. It may still rest with the parties in interest to pursue such an action, but it

by the same constitutional guaranties as are other citizens - to change their domicile from

was never intended effectively and promptly to meet any such situation as that now before us.

Manila to another locality. On the contrary, Philippine penal law specifically punishes any
public officer who, not being expressly authorized by law or regulation, compels any person to
change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as
to be found in the Bill of Rights of the Constitution. Under the American constitutional system,
liberty of abode is a principle so deeply imbedded in jurisprudence and considered so
elementary in nature as not even to require a constitutional sanction. Even the GovernorGeneral of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the executive of a municipality, who acts
within a sphere of delegated powers. If the mayor and the chief of police could, at their mere
behest or even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other municipalities of the

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

Philippines have the same privilege. If these officials can take to themselves such power, then
any other official can do the same. And if any official can exercise the power, then all persons

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find

would have just as much right to do so. And if a prostitute could be sent against her wishes

that any public officer has violated this provision of law, these prosecutors will institute and

and under no law from one locality to another within the country, then officialdom can hold

press a criminal prosecution just as vigorously as they have defended the same official in this

the same club over the head of any citizen.

action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be

proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was

a case which will later be referred to - "It would be a monstrous anomaly in the law if to an

prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the

application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient

women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of

answer that the confinement was a crime, and therefore might be continued indefinitely until

police did not extend beyond the city limits. At first blush, this is a tenable position. On closer

the guilty party was tried and punished therefor by the slow process of criminal procedure." (In

examination, acceptance of such dictum is found to be perversive of the first principles of the

the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and

writ of habeas corpus.

exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such

Granted that habeas corpus is the proper remedy, respondents have raised three specific

restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible

objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in

taking of these women from Manila by officials of that city, who handed them over to other

parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that

parties, who deposited them in a distant region, deprived these women of freedom of

the person in question are not restrained of their liberty by respondents. It was finally

locomotion just as effectively as if they had been imprisoned. Placed in Davao without either

suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only

money or personal belongings, they were prevented from exercising the liberty of going when

extends to the city limits and that perforce they could not bring the women from Davao.

and where they pleased. The restraint of liberty which began in Manila continued until the
aggrieved parties were returned to Manila and released or until they freely and truly waived his

The first defense was not presented with any vigor by counsel. The petitioners were relatives


and friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for

Consider for a moment what an agreement with such a defense would mean. The chief

the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code

executive of any municipality in the Philippines could forcibly and illegally take a private

of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it

citizen and place him beyond the boundaries of the municipality, and then, when called upon

the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the

to defend his official action, could calmly fold his hands and claim that the person was under

court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no

no restraint and that he, the official, had no jurisdiction over this other municipality. We

application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in

believe the true principle should be that, if the respondent is within the jurisdiction of the


court and has it in his power to obey the order of the court and thus to undo the wrong that
he has inflicted, he should be compelled to do so. Even if the party to whom the writ is

The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general rule of
good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas
corpus should be presented to the nearest judge of the court of first instance. But this is not a
hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is

addressed has illegally parted with the custody of a person before the application for the writ is
no reason why the writ should not issue. If the mayor and the chief of police, acting under no
authority of law, could deport these women from the city of Manila to Davao, the same officials
must necessarily have the same means to return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by
forcing her to change her domicile and to avow the act with impunity in the courts, while the
person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

dependent on the particular circumstances. In this instance it was not shown that the Court
of First Instance of Davao was in session, or that the women had any means by which to

It must be that some such question has heretofore been presented to the courts for decision.

advance their plea before that court. On the other hand, it was shown that the petitioners with

Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any

their attorneys, and the two original respondents with their attorney, were in Manila; it was

analogous case. Certain decisions of respectable courts are however very persuasive in nature.

shown that the case involved parties situated in different parts of the Islands; it was shown
that the women might still be imprisoned or restrained of their liberty; and it was shown that if
the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the
application and then to grant the writ would have amounted to a denial of the benefits of the

A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ of habeas corpus would issue from the Supreme Court to a person
within the jurisdiction of the State to bring into the State a minor child under guardianship in
the State, who has been and continues to be detained in another State. The membership of the

Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice,

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers

and Cooley, Campbell, and Christiancy, justices. On the question presented the court was

vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex

equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be

parte Young [1892], 50 Fed., 526.)

quashed. Cooley, J., one of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the English decisions, and
since, as will hereafter appear, the English courts have taken a contrary view, only the
following eloquent passages from the opinion of Justice Cooley are quoted:

The English courts have given careful consideration to the subject. Thus, a child had been
taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her husband directing the defendant to
produce the child. The judge at chambers gave defendant until a certain date to produce the
child, but he did not do so. His return stated that the child before the issuance of the writ had

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ

been handed over by him to another; that it was no longer in his custody or control, and that it

on the petition which was laid before us. . . .

was impossible for him to obey the writ. He was found in contempt of court. On appeal, the
court, through Lord Esher, M. R., said:

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ

after its many confirmations, until Coke could declare in his speech on the petition of right

commanded the defendant to have the body of the child before a judge in chambers at the

that "Magna Charta was such a fellow that he will have no sovereign," and after the extension

Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her

of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it

being taken and detained. That is a command to bring the child before the judge and must be

should now be discovered that evasion of that great clause for the protection of personal

obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it

liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is

could be shown that by reason of his having lawfully parted with the possession of the child

so, it is important that it be determined without delay, that the legislature may apply the

before the issuing of the writ, the defendant had no longer power to produce the child, that

proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . .

might be an answer; but in the absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not obeying the writ without lawful

The second proposition - that the statutory provisions are confined to the case of
imprisonment within the state - seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the prison
doors, and set the prisoner free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon the respondent, and if he fails
to obey it, the means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control exercised?
And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

excuse. Many efforts have been made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before the issue of the writ.
The question is whether there has been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B.
D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N.
S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to
the defendant to have before the circuit court of the District of Columbia three colored persons,
with the cause of their detention. Davis, in his return to the writ, stated on oath that he had
purchased the negroes as slaves in the city of Washington; that, as he believed, they were
removed beyond the District of Columbia before the service of the writ of habeas corpus, and
that they were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a writ of
habeas corpus. The court held the return to be evasive and insufficient, and that Davis was
bound to produce the negroes, and Davis being present in court, and refusing to produce
them, ordered that he be committed to the custody of the marshall until he should produce the
negroes, or be otherwise discharged in due course of law. The court afterwards ordered that
Davis be released upon the production of two of the negroes, for one of the negroes had run
away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of
the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the

excuse." In other words, the return did not show that every possible effort to produce the

respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

women was made by the respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the public gaze the spectacle of a clash

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not,

between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

whether the contempt should be punished or be taken as purged.

In response to the second order of the court, the respondents appear to have become more
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yigo to present the persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents were thus given ample time,
practically one month, to comply with the writ. As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being brought before the court on

zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is
a substantial compliance with it. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any wrong is now being
perpetrated in Davao, it should receive an executive investigation. If any particular individual is
still restrained of her liberty, it can be made the object of separate habeas corpus proceedings.

the day named.

Since the writ has already been granted, and since we find a substantial compliance with it,
For the respondents to have fulfilled the court's order, three optional courses were open: (1)

nothing further in this connection remains to be done.

They could have produced the bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of sickness or infirmity those persons

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of

could not safely be brought before the court; or (3) they could have presented affidavits to show

the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and

that the parties in question or their attorney waived the right to be present. (Code of Criminal

Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the

Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ

attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz,

was granted; they did not show impossibility of performance; and they did not present writings

Fiscal of the city of Manila.

that waived the right to be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated to be found in the municipality of Davao, and that
about this number either returned at their own expense or were produced at the second
hearing by the respondents.

The power to punish for contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of justice must falter or fail.
Nevertheless when one is commanded to produce a certain person and does not do so, and
does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent
to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ of habeas corpus when he has power to do

The court, at the time the return to its first order was made, would have been warranted

so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In

summarily in finding the respondents guilty of contempt of court, and in sending them to jail

re Patterson [1888], 99 N. C., 407.)

until they obeyed the order. Their excuses for the non-production of the persons were far from
sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought
that, having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child back; that he
must do much more than write letters for the purpose; that he must advertise in America, and
even if necessary himself go after the child, and do everything that mortal man could do in the
matter; and that the court would only accept clear proof of an absolute impossibility by way of

With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of the
first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents
Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic communications. The city fiscal,
Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal

representative of the city government. Finding him innocent of any disrespect to the court, his


counter-motion to strike from the record the memorandum of attorney for the petitioners,


which brings him into this undesirable position, must be granted. When all is said and done,
as far as this record discloses, the official who was primarily responsible for the unlawful
deportation, who ordered the police to accomplish the same, who made arrangements for the

of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,

Secretary of National Defense and Chief of Staff, respectively, respondents.

steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of
the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was commendable. His methods were unlawful. His regard


for the writ of habeas corpus issued by the court was only tardily and reluctantly

Before the Court is a contreversy of grave national importance. While ostensibly only legal
issues are involved, the Court's decision in this case would undeniably have a profound effect

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure,

on the political, economic and other aspects of national life.

which relates to the penalty for disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It would also be possible to find that since
respondent Lukban did comply substantially with the second order of the court, he has purged
his contempt of the first order. Some members of the court are inclined to this merciful view.
Between the two extremes appears to lie the correct finding. The failure of respondent Lukban
to obey the first mandate of the court tended to belittle and embarrass the administration of
justice to such an extent that his later activity may be considered only as extenuating his
conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount is P100.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via
the non-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino
was declared President of the Republic under a revolutionary government. Her ascension to
and consilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986
led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel
troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of
the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation
to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the constitutional moorings of Mrs.

In resume - as before stated, no further action on the writ of habeas corpus is necessary. The

Aquino's presidency. This did not, however, stop bloody challenges to the government. On

respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in

August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution,

contempt of court. Respondent Lukban is found in contempt of court and shall pay into the

led a failed coup that left scores of people, both combatants and civilians, dead. There were

office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100).

several other armed sorties of lesser significance, but the message they conveyed was the same

The motion of the fiscal of the city of Manila to strike from the record the Replica al

a split in the ranks of the military establishment that thraetened civilian supremacy over

Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against

military and brought to the fore the realization that civilian government could be at the mercy

respondents. So ordered.

of a fractious military.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope

But the armed threats to the Government were not only found in misguided elements and

that this decision may serve to bulwark the fortifications of an orderly government of laws and

among rabid followers of Mr. Marcos. There are also the communist insurgency and the

to protect individual liberty from illegal encroachment.

seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to
the extent that the communists have set up a parallel government of their own on the areas
they effectively control while the separatist are virtually free to move about in armed bands.

G.R. No. 88211 September 15, 1989

There has been no let up on this groups' determination to wrest power from the govermnent.














ESTRELLA, petitioners,

Not only through resort to arms but also to through the use of propaganda have they been
successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.

The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to

(1) Have the requirements of due process been complied with in making such finding?

show concrete results in alleviating the poverty of the masses, while the recovery of the illgotten wealth of the Marcoses has remained elusive.

(2) Has there been prior notice to petitioners?

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die.

(3) Has there been a hearing?

But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when
the stability of government is threatened from various directions and the economy is just
beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue
travel documents to Mr. Marcos and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the Philippines.
The Issue

(4) Assuming that notice and hearing may be dispensed with, has the President's decision,
including the grounds upon which it was based, been made known to petitioners so that they
may controvert the same?
c. Is the President's determination that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public
health a political question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public
health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return
of former President Marcos and his family, acted and would be acting without jurisdiction, or
in excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the

[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

Constitution, the President may prohibit the Marcoses from returning to the Philippines.
The case for petitioners is founded on the assertion that the right of the Marcoses to return to
According to the petitioners, the resolution of the case would depend on the resolution of the

the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

following issues:
Section 1. No person shall be deprived of life, liberty, or property without due process of law,
1. Does the President have the power to bar the return of former President Marcos and family

nor shall any person be denied the equal protection of the laws.

to the Philippines?
xxx xxx xxx
a. Is this a political question?
Section 6. The liberty of abode and of changing the same within the limits prescribed by law
2. Assuming that the President has the power to bar former President Marcos and his family

shall not be impaired except upon lawful order of the court. Neither shall the right to travel be

from returning to the Philippines, in the interest of "national security, public safety or public

impaired except in the interest of national security, public safety, or public health, as may be


provided by law.

a. Has the President made a finding that the return of former President Marcos and his family

The petitioners contend that the President is without power to impair the liberty of abode of

to the Philippines is a clear and present danger to national security, public safety or public

the Marcoses because only a court may do so "within the limits prescribed by law." Nor may


the President impair their right to travel because no law has authorized her to do so. They
advance the view that before the right to travel may be impaired by any authority or agency of

b. Assuming that she has made that finding

the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his

thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the

family to return to the Philippines is guaranteed.

two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security and safety of its

The Universal Declaration of Human Rights provides:

nationals, the question becomes political and this Honorable Court can not consider it.

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders

There are thus gradations to the question, to wit:

of each state.
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
(2) Everyone has the right to leave any country, including his own, and to return to his

reestablish their residence here? This is clearly a justiciable question which this Honorable


Court can decide.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and

the Philippines, provides:

Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.

reestablish their residence here even if their return and residence here will endanger national
security and public safety? this is still a justiciable question which this Honorable Court can
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;

2) Everyone shall be free to leave any country, including his own.

Rollo, pp. 297-299.]

3) The above-mentioned rights shall not be subject to any restrictions except those which are

Respondents argue for the primacy of the right of the State to national security over individual

provided by law, are necessary to protect national security, public order (order public), public

rights. In support thereof, they cite Article II of the Constitution, to wit:

health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all

4) No one shall be arbitrarily deprived of the right to enter his own country.

citizens may be required, under conditions provided by law, to render personal, military, or civil

On the other hand, the respondents' principal argument is that the issue in this case involves
a political question which is non-justiciable. According to the Solicitor General:

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.

blessings of democracy.

Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to
the Philippines for reasons of national security and public safety has international precedents.

Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at
this time in the face of the determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as
it involves merely a determination of what the law provides on the matter and application

Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez
of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators
whose return to their homelands was prevented by their governments. [See Statement of
Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 2632; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power

Consequently, resolution by the Court of the well-debated issue of whether or not there can be

and its limits. We, however, view this issue in a different light. Although we give due weight to

limitations on the right to travel in the absence of legislation to that effect is rendered

the parties' formulation of the issues, we are not bound by its narrow confines in arriving at a

unnecessary. An appropriate case for its resolution will have to be awaited.

solution to the controversy.

Having clarified the substance of the legal issue, we find now a need to explain the
At the outset, we must state that it would not do to view the case within the confines of the

methodology for its resolution. Our resolution of the issue will involve a two-tiered approach.

right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases

We shall first resolve whether or not the President has the power under the Constitution, to bar

of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280,

the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the

101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to

express power of the Court under the Constitution in Article VIII, Section 1, whether or not the

the exercise thereof, respectively.

President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcose's to the Philippines poses a

It must be emphasized that the individual right involved is not the right to travel from the

serious threat to national interest and welfare and decided to bar their return.

Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to one's country, a

Executive Power

totally distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement and abode within the territory
of a state, the right to leave a country, and the right to enter one's country as separate and
distinct rights. The Declaration speaks of the "right to freedom of movement and residence
within the borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant
guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)]
and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may
be restricted by such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art.
12(4).] It would therefore be inappropriate to construe the limitations to the right to return to
one's country in the same context as those pertaining to the liberty of abode and the right to

The 1987 Constitution has fully restored the separation of powers of the three great branches
of government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil.
139 (1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government." [At
157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be
vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested
in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo
v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of
all legislative power; and a grant of the judicial power means a grant of all the judicial power
which may be exercised under the government." [At 631-632.1 If this can be said of the

The right to return to one's country is not among the rights specifically guaranteed in the Bill

legislative power which is exercised by two chambers with a combined membership of more

of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-

than two hundred members and of the judicial power which is vested in a hierarchy of courts,

considered view that the right to return may be considered, as a generally accepted principle of

it can equally be said of the executive power which is vested in one official the President.

international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of
the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12 (4).]

As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain powers by
the President, i.e., the power of control over all executive departments, bureaus and offices, the

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the

power to execute the laws, the appointing power, the powers under the commander-in-chief

purpose of effectively exercising the right to travel are not determinative of this case and are

clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty

only tangentially material insofar as they relate to a conflict between executive action and the

with the concurrence of Congress, the power to contract or guarantee foreign loans, the power

exercise of a protected right. The issue before the Court is novel and without precedent in

to enter into treaties or international agreements, the power to submit the budget to Congress,

Philippine, and even in American jurisprudence.

and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the

different constitutions are essential for a complete understanding of the extent of and

framers of the Constitution intend that the President shall exercise those specific powers and

limitations to the President's powers under the 1987 Constitution. The 1935 Constitution

no other? Are these se enumerated powers the breadth and scope of "executive power"?

created a strong President with explicitly broader powers than the U.S. President. The 1973

Petitioners advance the view that the President's powers are limited to those specifically

Constitution attempted to modify the system of government into the parliamentary type, with

enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated

the President as a mere figurehead, but through numerous amendments, the President

powers, and what is not enumerated is impliedly denied to her. Inclusion unius est exclusio

became even more powerful, to the point that he was also the de facto Legislature. The 1987

alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the

Constitution, however, brought back the presidential system of government and restored the

institution of the U.S. Presidency after which ours is legally patterned.**

separation of legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.

Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:

It would not be accurate, however, to state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of government and whatever powers

Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same
token, to those who think that constitution makers ought to leave considerable leeway for the
future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall
be vested in a President of the United States of America." . . .. [The President: Office and
Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who
held the office from Washington to the early 1900's, and the swing from the presidency by
commission to Lincoln's dictatorship, he concluded that "what the presidency is at any
particular moment depends in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:

inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise ofspecific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the
Governor-General of the Philippines and the Legislature may vote the shares of stock held by
the Government to elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:

For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas President.
But, more than most agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and character, his values,
standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford,
was a chameleon, taking its color from the character and personality of the President. The
thrust of the office, its impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his personal obligation to inform
and involve the Congress, to earn and hold the confidence of the electorate and to render an
accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather,
that the consideration of tradition and the development of presidential power under the

...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the
doing of anything which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties devolved upon these members
are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that they do not fall within the
authority of either of these two constitutes logical ground for concluding that they do fall within
that of the remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent
we find reinforcement for the view that it would indeed be a folly to construe the powers of a
branch of government to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white.

absolute terms, admits of limits and must be adjusted to the requirements of equally

Even the more specific of them are found to terminate in a penumbra shading gradually from

important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

one extreme to the other. ....

To the President, the problem is one of balancing the general welfare and the common good
xxx xxx xxx

against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the

It does not seem to need argument to show that however we may disguise it by veiling words we
do not and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]

of the President but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed
[see Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President].

The Power Involved

The Constitution declares among the guiding

President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power

principles that "[t]he prime duty of

theGovernment is to serve and protect the people" and that "[t]he maintenance of peace and
order,the protection of life, liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and

More particularly, this case calls for the exercise of the President's powers as protector of the
peace. Rossiter The American Presidency].The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in times of emergency or to leading
the State against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked with attending to
the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in
times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in

Admittedly, service and protection of the people, the maintenance of peace and order, the

fulfilling presidential duties in times of peace is not in any way diminished by the relative want

protection of life, liberty and property, and the promotion of the general welfare are essentially

of an emergency specified in the commander-in-chief provision. For in making the President

ideals to guide governmental action. But such does not mean that they are empty words. Thus,

commander-in-chief the enumeration of powers that follow cannot be said to exclude the

in the exercise of presidential functions, in drawing a plan of government, and in directing

President's exercising as Commander-in- Chief powers short of the calling of the armed forces,

implementing action for these plans, or from another point of view, in making any decision as

or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to

President of the Republic, the President has to consider these principles, among other things,

keep the peace, and maintain public order and security.

and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to
the Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,

That the President has the power under the Constitution to bar the Marcose's from returning
has been recognized by memembers of the Legislature, and is manifested by the Resolution
proposed in the House of Representatives and signed by 103 of its members urging the
President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for
true national reconciliation and as irrevocable proof of our collective adherence to

promote their welfare and advance the national interest. It must be borne in mind that the

uncompromising respect for human rights under the Constitution and our laws." [House

Constitution, aside from being an allocation of power is also a social contract whereby the

Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to

people have surrendered their sovereign powers to the State for the common good. Hence, lest

bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense

the officers of the Government exercising the powers delegated by the people forget and the

of compassion to allow a man to come home to die in his country.

servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]

What we are saying in effect is that the request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely of the constitutional

The resolution of the problem is made difficult because the persons who seek to return to the

provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions,

country are the deposed dictator and his family at whose door the travails of the country are

or of case law which clearly never contemplated situations even remotely similar to the present

laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be

one. It must be treated as a matter that is appropriately addressed to those residual unstated

recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For

powers of the President which are implicit in and correlative to the paramount duty residing in

the exercise of even the preferred freedoms of speech and ofexpression, although couched in

that office to safeguard and protect general welfare. In that context, such request or demand

sphere alloted to him by the Basic Law, and the authority to determine whether or not he has

should submit to the exercise of a broader discretion on the part of the President to determine

so acted is vested in the Judicial Department, which, in this respect, is, in turn,

whether it must be granted or denied.

constitutionally supreme. In the exercise of such authority, the function of the Court is merely
to check not to supplant the Executive, or to ascertain merely whether he has gone beyond

The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot
agree with the Solicitor General that the issue constitutes a political question which is beyond

the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases
for the President to conclude that it was in the national interest to bar the return of the
Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has acted,

the jurisdiction of the Court to decide.

or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return.

The present Constitution limits resort to the political question doctrine and broadens the scope

We find that from the pleadings filed by the parties, from their oral arguments, and the facts

of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. But nonetheless there remain issues
beyond the Court's jurisdiction the determination of which is exclusively for the President, for

revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the President's decision..

Congress or for the people themselves through a plebiscite or referendum. We cannot, for
example, question the President's recognition of a foreign government, no matter how

The Court cannot close its eyes to present realities and pretend that the country is not

premature or improvident such action may appear. We cannot set aside a presidential pardon

besieged from within by a well-organized communist insurgency, a separatist movement in

though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we

Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of

amend the Constitution under the guise of resolving a dispute brought before us because the

military men, police officers and civilian officials, to mention only a few. The documented

power is reserved to the people.

history of the efforts of the Marcose's and their followers to destabilize the country, as earlier
narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time

There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberations of the Constitutional Commission cited by petitioners

would only exacerbate and intensify the violence directed against the State and instigate more

show that the framers intended to widen the scope of judicial review but they did not intend
courts of justice to settle all actual controversies before them. When political questions are

As divergent and discordant forces, the enemies of the State may be contained. The military

involved, the Constitution limits the determination to whether or not there has been a grave

establishment has given assurances that it could handle the threats posed by particular

abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose

groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the

action is being questioned. If grave abuse is not established, the Court will not substitute its

proverbial final straw that would break the camel's back. With these before her, the President

judgment for that of the official concerned and decide a matter which by its nature or by law is

cannot be said to have acted arbitrarily and capriciously and whimsically in determining that

for the latter alone to decide. In this light, it would appear clear that the second paragraph of

the return of the Marcoses poses a serious threat to the national interest and welfare and in

Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically

prohibiting their return.

empowers the courts to determine whether or not there has been a grave abuse of discretion on
the part of any branch or instrumentality of the government, incorporates in the fundamental
law the ruling inLansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481

It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in and
exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp
out such violence. The State, acting through the Government, is not precluded from taking

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege

pre- emptive action against threats to its existence if, though still nascent they are perceived as

of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation

apt to become serious and direct. Protection of the people is the essence of the duty of

of powers underlying our system of government, the Executive is supreme within his own

government. The preservation of the State the fruition of the people's sovereignty is an

sphere. However, the separation of powers, under the Constitution, is not absolute. What is

obligation in the highest order. The President, sworn to preserve and defend the Constitution

more, it goes hand in hand with the system of checks and balances, under which the Executive

and to see the faithful execution the laws, cannot shirk from that responsibility.

is supreme, as regards the suspension of the privilege, but only if and when he acts within the

We cannot also lose sight of the fact that the country is only now beginning to recover from the

We have examined carefully the lengthy and vigorously written Motion for Reconsideration

hardships brought about by the plunder of the economy attributed to the Marcoses and their

dated October 18, 1988 filed by counsel for respondent Raul M. Gonzalez, relating to the per

close associates and relatives, many of whom are still here in the Philippines in a position to

curiam Resolution of the Court dated October 7, 1988. We have reviewed once more the Court's

destabilize the country, while the Government has barely scratched the surface, so to speak, in

extended per curiam Resolution, in the light of the argument adduced in the Motion for

its efforts to recover the enormous wealth stashed away by the Marcoses in foreign

Reconsideration, but must conclude that we find no sufficient basis for modifying the

jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the

conclusions and rulings embodied in that Resolution. The Motion for Reconsideration sets

economy by the excessive foreign borrowing during the Marcos regime, which stifles and

forth copious quotations and references to foreign texts which, however, whatever else they

stagnates development and is one of the root causes of widespread poverty and all its

may depict, do not reflect the law in this jurisdiction.

attendant ills. The resulting precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.

Nonetheless, it might be useful to develop further, in some measure, some of the conclusions
reached in the per curiam Resolution, addressing in the process some of the "Ten (10) Legal

The President has determined that the destabilization caused by the return of the Marcoses

Points for Reconsideration," made in the Motion for Reconsideration.

would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the

1. In respondent's point A, it is claimed that it was error for this Court "to

economy, we cannot argue with that determination.

charge respondent [with] indirect contempt and convict him of direct


WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances poses a serious
threat to national interest and welfare and in prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.

In the per curiam Resolution (page 50), the Court concluded that "respondent Gonzalez is
guilty both of contempt of court in facie curiae and of gross misconduct as an officer of the
court and member of the bar." The Court did not use the phrase "in facie curiae" as a technical
equivalent of "direct contempt," though we are aware that courts in the United States have
sometimes used that phrase in speaking of "direct contempts' as "contempts in the face of the


courts." Rather, the court sought to convey that it regarded the contumacious acts or
statements (which were made both in a pleading filed before the Court and in statements given

G.R. No. 79690-707 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,
be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondents.

to the media) and the misconduct of respondent Gonzalez as serious acts flaunted in the face
of the Court and constituting a frontal assault upon the integrity of the Court and, through the
Court, the entire judicial system. What the Court would stress is that it required respondent,
in its Resolution dated 2 May 1988, to explain "why he should not be punished for contempt of
court and/or subjected to administrative sanctions" and in respect of which, respondent was
heard and given the most ample opportunity to present all defenses, arguments and evidence
that he wanted to present for the consideration of this Court. The Court did not summarily
impose punishment upon the respondent which it could have done under Section 1 of Rule 71

G.R. No. 80578 February 1, 1989

of the Revised Rules of Court had it chosen to consider respondent's acts as constituting
"direct contempt."

ENRIQUE A. ZALDIVAR, petitioner,

2. In his point C, respondent's counsel argues that it was "error for this


Court to charge respondent under Rule 139 (b) and not 139 of the

HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-Ombudsman under

Revised Rules of Court."

the 1987 Constitution, respondent.


In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of Court
pointing out that:
[R]eference of complaints against attorneys either to the Integrated Bar of
the Philippines or to the Solicitor General is not mandatory upon the

Supreme Court such reference to the Integrated Bar of the Philippines or

that from the foundation of the United States the constitutionality of the

to the Solicitor General is certainly not an exclusive procedure under the

power to punish for contempt without the intervention of a jury has not

terms of Rule 139 (b) of the Revised Rules of Court, especially where the

been doubted. The First Judiciary Act conferred such a power on the

charge consists of acts done before the Supreme Court.

federal courts in the very act of their establishment, 1 State 73, 83, and
of the Judiciary Committee of eight that reported the bill to the Senate,
five member including the chairman, Senator, later to be Chief Justice,

The above statement was made by the Court in response to respondent's motion for referral of

Ellsworth, had been delegates to the Constitutional Convention (Oliver

this case either to the Solicitor General or to the Integrated Bar of the Philippines under Rule

Ellsworth, Chairman, William Paterson, Caleb Strong, Ricard Basett,

139 (b). Otherwise, there would have been no need to refer to Rule 139 (b). It is thus only

William Few. 1 Annals of Cong 17). In the First Congress itself no less

necessary to point out that under the old rule, Rule 139, referral to the Solicitor General was

than nineteen member including Madison who contemporaneously

similarly not an exclusive procedure and was not the only course of action open to the

introduced the Bill of Rights, had been delegates to the Convention. And

Supreme Court. It is well to recall that under Section 1 (entitled "Motion or complaint") of Rule

when an abuse under this power manifested itself, and led Congress to

139, "Proceedings for the removal or suspension of attorneys may be taken by the Supreme

define more explicitly the summary power vested in the courts, it did not

Court, (1) on its own motion, or (2) upon the complaint under oath of another in writing"

remotely deny the existence of the power but merely defined the

(Parentheses supplied). The procedure described in Sections 2 et seq. of Rule 139 is the

conditions for its exercise more clearly, in an Act "declaratory of the law

procedure provided for suspension or disbarment proceedings initiated upon sworn complaint

concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487.

of another person, rather than a procedure required for proceedings initiated by the Supreme
Court on its own motion. It is inconceivable that the Supreme Court would initiate motu
proprioproceedings for which it did not find probable cause to proceed against an attorney.


Thus, there is no need to refer a case to the Solicitor General, which referral is made "for
investigation to determine if there is sufficient ground to proceed with the prosecution of the

Nor has the constitutionality of the power been doubted by this Court

respondent" (Section 3, Rule 139), where the Court itself has initiated against the respondent.

throughout its existence . In at least two score cases in this Court, not to

The Court may, of course, refer a case to the Solicitor General if it feels that, in a particular

mention the vast mass of decisions in the lower federal courts, the power to

case, further factual investigation is needed. In the present case, as pointed out in the per

punish summarily has been accepted without question. ...

curiamResolution of the Court (page 18), there was "no need for further investigation of facts in
the present case for it [was] not substantially disputed by respondent Gonzalez that he uttered
or wrote certain statements attributed to him" and that "in any case, respondent has had the
amplest opportunity to present his defense: his defense is not that he did not make the
statements ascribed to him but that those statements give rise to no liability on his part,
having been made in the exercise of his freedom of speech. The issues which thus need to be
resolved here are issues of law and of basic policy and the Court, not any other agency, is
compelled to resolve such issues."
In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is
from a dissentingopinion of Mr. Justice Black in Green v. United State.

It may be pointed out

that the majority in Green v. United States, through Mr. Justice Harlan, held, among other

To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The
judge who finds himself compelled to exercise the power to punish for contempt does so not
really to avenge a wrong inflicted upon his own person; rather he upholds and vindicates the
authority, dignity and integrity of the judicial institution and its claim to respectful behaviour
on the part of all persons who appears before it, and most especially from those who are
officers of the court.
3. In his point D, respondent counsel urges that it is error "for this Court
to apply the "visible tendency" rule rather than the "clear and present
danger" rule in disciplinary and contempt charges."

things, that: Federal courts do not lack power to impose sentences in excess of one year for
criminal contempt; that criminal contempts are not subject to jury trial as a matter of

The Court did not purport to announce a new doctrine of "visible tendency," it was, more

constitutional right; nor does the (US) Constitution require that contempt subject to prison

modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which

terms of more than one year be based on grand jury indictments.

penalizes a variety of contumacious conduct including: "any improper conduct tending, directly
or indirectly, to impede, obstruct or degrade the administration of justice."

In his concurring opinion in the same case, Mr. Justice Frankfurter said:
The "clear and present danger" doctrine invoked by respondent's counsel is not a magic
Whatever the conflicting views of scholars in construing more or less
dubious manuscripts of the Fourteenth Century, what is indisputable is

incantation which dissolves all problems and dispenses with analysis and judgment in the
testing of the legitimacy of claims to free speech, and which compels a court to exonerate a
defendant the moment the doctrine is invoked, absent proof of impending apocalypse. The

clear and present danger" doctrine has been an accepted method for marking out the

4. In his point H, respondent's counsel argues that it is error "for this

appropriate limits of freedom of speech and of assembly in certain contexts. It is not, however,

Court to hold that intent is irrelevant in charges of misconduct." What the

the only test which has been recognized and applied by courts. In Logunzad v. Vda. de

Court actually said on this point was:


this Court, speaking through Mme. Justice Melencio-Herrera said:

Respondent Gonzalez disclaims an intent to attack and denigrate the
...The right of freedom of expression indeed, occupies a preferred position in

Court. The subjectivities of the respondent are irrelevant so far as

the "hierarchy of civil liberties" (Philippine Blooming Mills Employees

characterization of his conduct or misconduct is concerned. He will not,

however, be allowed to disclaim the natural and plain import of his words

Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191

and acts. It is, upon the other hand, not irrelevant to point out that the

[1963]. It is not, however, without limitations. As held in Gonzales v.

respondent offered no apology in his two (2) explanations and exhibited

Commission on Elections, 27 SCRA 835, 858 [1960]:

no repentance (Resolution, p. 7; footnotes omitted).

"From the language of the specific constitutional provision, it would

appear that the right is not susceptible of any limitation. No law may be
passed abridging the freedom of speech and of the press. The realities of
life in a complex society preclude however, a literal interpretation. Freedom
of expression is not an absolute. It would be too much to insist that all
times and under all circumstances it should remain unfettered and
unrestrained. There are other societal values that press for recognition."
The prevailing doctrine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and of the press, which includes such vehicles of the mass media as

The actual subjectivities of the respondent are irrelevant because such subjectivities
(understood as pyschological phenomena) cannot be ascertained and reached by the processes
of this Court. Human intent can only be shown derivatively and implied from an examination
of acts and statements. Thus, what the Court was saying was that respondent's disclaimer of
an intent to attack and denigrate the Court, cannot prevail over the plain import of what he did
say and do. Respondent cannot negate the clear import of his acts and statements by simply
pleading a secret intent or state of mind incompatible with those acts or statements. It is
scarcely open to dispute that, e.g., one accused of homicide cannot successfully deny his
criminal intent by simply asserting that while he may have inserted a knife between the
victim's ribs, he actually acted from high motives and kind feelings for the latter.

radio, television and the movies, is the "balancing-of-interests test" (Chief

5 In his point 1, respondent's counsel argues that it is error "for this

Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The

Court to punish respondent for contempt of court for out of court

principle "requires a court to take conscious and detailed consideration of


the interplay of interests observable in a given situation or type of

situation (Separate Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899). (Emphasis Supplied)

Respondent's counsel asks this Court to follow what he presents as alleged modern trends in
the United Kingdom and in the United States concerning the law of contempt. We are, however,

Under either the "clear and present danger" test or the "balancing-of-interest test," we believe
that the statements here made by respondent Gonzalez are of such a nature and were made in
such a manner and under such circumstances, as to transcend the permissible limits of free
speech. This conclusion was implicit in the per curiam Resolution of October 7, 1988. It is
important to point out that the "substantive evil" which the Supreme Court has a right and a

unable to regard the texts that he cites as binding or persuasive in our jurisdiction. The Court
went to some length to document the state of our case law on this matter in its per
curiam Resolution. There is nothing in the circumstances of this case that would suggest to
this Court that that case law, which has been followed for at least half a century or so, ought
to be reversed.

duty to prevent does not, in the instant case, relate to threats of physical disorder or overt
violence or similar disruptions of public order.

What is here at stake is the authority of the

Supreme Court to confront and prevent a "substantive evil" consisting not only of the
obstruction of a free and fair hearing of a particular case but also the avoidance of the broader
evil of the degradation of the judicial system of a country and the destruction of the standards
of professional conduct required from members of the bar and officers of the courts. The
"substantive evil" here involved, in other words, is not as palpable as a threat of public disorder
or rioting but is certainly no less deleterious and more far reaching in its implications for

6. In his point J, respondent's counsel pleads that the imposition of

indefinite suspension from the practice of law constitutes "cruel,
degrading or inhuman punishment". The Court finds it difficult to
consider this a substantial constitutional argument. The indefiniteness of
the respondent's suspension, far from being "cruel" or "degrading" or
"inhuman," has the effect of placing, as it were, the key to the restoration
of his rights and privileges as a lawyer in his own hands. That sanction
has the effect of giving respondent the chance to purge himself in his own
good time of his contempt and misconduct by acknowledging such

misconduct, exhibiting appropriate repentance and demonstrating his

Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit,

willingness and capacity to live up to the exacting standards of conduct

SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated

rightly demanded from every member of the bar and officer of the courts.

PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team
as perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District

ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit.
The denial is FINAL.

PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3
Manlangit set aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills [3]-as money for the buy-bust operation. The market price of one kilo of marijuana was

The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and
the Supplemental Manifestation, dated October 27, 1988, filed by respondent
[G.R. No. 125299. January 22, 1999]

then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial
numbers in the police blotter.[4] The team rode in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as
interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the marked bills
worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw


Boulevard and Jacinto Street while he got the marijuana from his associate. [5] An hour later,

VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.

"Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were
waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit.
PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They


frisked "Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he
left the money at the house of his associate named "Neneth." [6] "Jun" led the police team to


"Neneth's" house nearby at Daang Bakal.

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the

Catama @ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the

woman as his associate.[7] SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit

Dangerous Drugs Act of 1972.[1] The information reads:

looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under
the dining table. He saw that one of the box's flaps was open and inside the box was something

"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and aiding one another and without having been
authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer,

wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana
earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house
and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks
of what appeared to be dried marijuana leaves.

deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops
weighing 7,641.08 grams in violation of the above-cited law.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from
"Neneth."[8] The policemen arrested "Neneth." They took "Neneth" and "Jun," together with the



The prosecution contends the offense was committed as follows: In November 1995, members
of the North Metropolitan District, Philippine National Police (PNP) Narcotics Command
(Narcom), received information from two (2) civilian informants (CI) that one "Jun" was
engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap
and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between
the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in
Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed

box, its contents and the marked bills and turned them over to the investigator at
headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado
while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined
at the PNP Crime Laboratory. [9] The bricks, eleven (11) in all, were found to be dried marijuana
fruiting tops of various weights totalling 7,641.08 grams. [10]
The prosecution story was denied by accused-appellants Florencio Doria and Violeta
Gaddao. Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00
in the morning, he was at the gate of his house reading a tabloid newspaper. Two men
appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area
and as the men questioning him were strangers, accused-appellant denied knowing any

"Totoy." The men took accused-appellant inside his house and accused him of being a pusher

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants.

in their community. When accused-appellant denied the charge, the men led him to their car

The trial court found the existence of an "organized/syndicated crime group" and sentenced

outside and ordered him to point out the house of "Totoy." For five (5) minutes, accused-

both accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portion

appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house.

of the decision reads as follows:

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later

"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA

identified as PO3 Manlangit, pushed open the door and he and his companions entered and

GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt, they are

looked around the house for about three minutes. Accused-appellant Doria was left standing

both CONVICTED of the present charge against them.

at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water
from the well. He asked Violeta where "Totoy" was but she replied he was not there. Curious
onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her
house, three men were already inside. Accused-appellant Doria, then still at the door,
overheard one of the men say that they found a carton box. Turning towards them, Doria saw
a box on top of the table. The box was open and had something inside. PO3 Manlangit ordered
him and Violeta to go outside the house and board the car. They were brought to police
headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of
his acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together
at the neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife.[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5,
1995, she was at her house at Daang Bakal, Mandaluyong City where she lived with her
husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and
Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the
morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a
housepainter, had left for Pangasinan five days earlier. She woke her children and bathed

According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover
violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in People v.
Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration,
however, the provisions of Sec. 23, also of Republic Act No. 7659 which explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any person who
belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y
BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of
Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in case of
insolvency and to pay the costs.

them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her
youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving the

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous

door open. After seeing Arjay off, she and Jayson remained standing in front of the school

Drugs Board, NBI for destruction in accordance with law.

soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they
passed the artesian well to fetch water. She was pumping water when a man clad in short
pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her
and took her to her house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about
a box on top of the table. This was the first time she saw the box. The box was closed and tied
with a piece of green straw. The men opened the box and showed her its contents. She said
she did not know anything about the box and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend
of her husband, and that her husband never returned to their house after he left for
Pangasinan. She denied the charge against her and Doria and the allegation that marked bills
were found in her person.[12]

Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong
City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her
transfer to the Correctional Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for
mandatory review.
Before this Court, accused-appellant Doria assigns two errors, thus:


Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is


a form of entrapment employed by peace officers as an effective way of apprehending a


criminal in the act of the commission of an offense. [16] Entrapment has received judicial


sanction when undertaken with due regard to constitutional and legal safeguards.[17]

Entrapment was unknown in common law. It is a judicially created twentieth-century
American doctrine that evolved from the increasing use of informers and undercover agents in


the detection of crimes, particularly liquor and narcotics offenses. [18] Entrapment sprouted
Accused-appellant Violeta Gaddao contends:

from the doctrine of estoppel and the public interest in the formulation and application of
decent standards in the enforcement of criminal law. [19] It also took off from a spontaneous
moral revulsion against using the powers of government to beguile innocent but ductile
persons into lapses that they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally negative meaning because
it is understood as the inducement of one to commit a crime not contemplated by him, for the


mere purpose of instituting a criminal prosecution against him. [21] The classic definition of
entrapment is that articulated by Justice Roberts in Sorrells v. United States,[22] the first


Supreme Court decision to acknowledge the concept: "Entrapment is the conception and


planning of an offense by an officer, and his procurement of its commission by one who would
not have perpetrated it except for the trickery, persuasion or fraud of the officer." [23] It consists
of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out by law enforcement


officers or the agents to induce a defendant to commit a crime; and (b) the origin of the


criminal design in the minds of the government officials rather than that of the innocent
defendant, such that the crime is the product of the creative activity of the law enforcement


It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of










entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an
otherwise innocent person into a criminal career. [25] Where the criminal intent originates in the
mind of the entrapping person and the accused is lured into the commission of the offense
charged in order to prosecute him, there is entrapment and no conviction may be had.

Where, however, the criminal intent originates in the mind of the accused and the criminal

offense is completed, the fact that a person acting as a decoy for the state, or public officials
furnished the accused an opportunity for commission of the offense, or that the accused is
aided in the commission of the crime in order to secure the evidence necessary to prosecute
him, there is no entrapment and the accused must be convicted. [27] The law tolerates the use of

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in
the apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of
accused-appellant Gaddao, the search of her person and house, and the admissibility of the
pieces of evidence obtained therefrom.

decoys and other artifices to catch a criminal.

Entrapment is recognized as a valid defense [28] that can be raised by an accused and partakes
of the nature of a confession and avoidance. [29] It is a positive defense. Initially, an accused has
the burden of providing sufficient evidence that the government induced him to commit the
offense. Once established, the burden shifts to the government to show otherwise. [30] When
entrapment is raised as a defense, American federal courts and a majority of state courts use

the "subjective" or "origin of intent" test laid down in Sorrells v. United States [31] to determine


whether entrapment actually occurred. The focus of the inquiry is on the accused's

a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to

predisposition to commit the offense charged, his state of mind and inclination before his


initial exposure to government agents.


All relevant facts such as the accused's mental and

character traits, his past offenses, activities, his eagerness in committing the crime, his
reputation, etc., are considered to assess his state of mind before the crime. [33] The
predisposition test emphasizes the accused's propensity to commit the offense rather than the
officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal."


If the accused was found to have been ready

and willing to commit the offense at any favorable opportunity, the entrapment defense will fail
even if a police agent used an unduly persuasive inducement. [36] Some states, however, have
adopted the "objective" test.


This test was first authoritatively laid down in the case

of Grossman v. State[38] rendered by the Supreme Court of Alaska. Several other states have
subsequently adopted the test by judicial pronouncement or legislation. Here, the court
considers the nature of the police activity involved and the propriety of police conduct. [39] The
inquiry is focused on the inducements used by government agents, on police conduct, not on
the accused and his predisposition to commit the crime. For the goal of the defense is to deter
unlawful police conduct.[40]The test of entrapment is whether the conduct of the law
enforcement agent was likely to induce a normally law-abiding person, other than one who is
ready and willing, to commit the offense;


for purposes of this test, it is presumed that a law-

abiding person would normally resist the temptation to commit a crime that is presented by
the simple opportunity to act unlawfully.


Official conduct that merely offers such an

opportunity is permissible, but overbearing conduct, such as badgering, cajoling or



or appeals to sentiments such as pity, sympathy, friendship or pleas of

desperate illness, are not.


Proponents of this test believe that courts must refuse to convict

an entrapped accused not because his conduct falls outside the legal norm but rather
because, even if his guilt has been established, the methods employed on behalf of the
government to bring about the crime "cannot be countenanced." To some extent, this reflects
the notion that the courts should not become tainted by condoning law enforcement


The undisputed fact that the accused was a dangerous and chronic offender or that he was

Hence, the transactions leading up to the offense, the interaction between the

accused and law enforcement officer and the accused's response to the officer's inducements,
the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a normal person.


Both the "subjective" and "objective" approaches have been criticized and objected to. It is
claimed that the "subjective" test creates an "anything goes" rule, i.e., if the court determines
that an accused was predisposed to commit the crime charged, no level of police deceit,
badgering or other unsavory practices will be deemed impermissible. [47] Delving into the
accused's character and predisposition obscures the more important task of judging police
behavior and prejudices the accused more generally. It ignores the possibility that no matter
what his past crimes and general disposition were, the accused might not have committed the
particular crime unless confronted with inordinate inducements.


Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the
United States now combine both the "subjective" and "objective" tests. [51] In Cruz v. State,[52] the
Florida Supreme Court declared that the permissibility of police conduct must first be
determined. If this objective test is satisfied, then the analysis turns to whether the accused
was predisposed to commit the crime. [53] In Baca v. State,[54] the New Mexico Supreme Court
modified the state's entrapment analysis by holding that "a criminal defendant may
successfully assert a defense of entrapment, either by showing lack of predisposition to commit
the crime for which he is charged, or, that the police exceeded the standards of proper
investigation.[55] The hybrid approaches combine and apply the "objective" and "subjective" tests
alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers while apprehending
the accused caught in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused
from the offense of smoking opium after finding that the government employee, a BIR
personnel, actually induced him to commit the crime in order to prosecute him. Smith, the
BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon say
that he liked smoking opium on some occasions. Smith's testimony was disregarded. We
accorded significance to the fact that it was Smith who went to the accused three times to
convince him to look for an opium den where both of them could smoke this drug. [57] The
conduct of the BIR agent was condemned as "most reprehensible." [58] In People v. Abella,[59] we
acquitted the accused of the crime of selling explosives after examining the testimony of the
apprehending police officer who pretended to be a merchant. The police officer offered "a
tempting price, xxx a very high one" causing the accused to sell the explosives. We found that
there was inducement, "direct, persistent and effective" by the police officer and that outside of
his testimony, there was no evidence sufficient to convict the accused. [60] In People v. Lua Chu
and Uy Se Tieng,[61] we convicted the accused after finding that there was no inducement on
the part of the law enforcement officer. We stated that the Customs secret serviceman
smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had
already planned its importation and ordered said drug. We ruled that the apprehending officer
did not induce the accused to import opium but merely entrapped him by pretending to have
an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se Tieng [63] we first laid down the
distinction between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,

we held:

On the other extreme, the

purely "objective" test eliminates entirely the need for considering a particular accused's

"ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping

predisposition. His predisposition, at least if known by the police, may have an important

persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and

bearing upon the question of whether the conduct of the police and their agents was proper.

while instigation, as distinguished from mere entrapment, has often been condemned and has

sometimes been held to prevent the act from being criminal or punishable, the general rule is

The distinction between entrapment and instigation has proven to be very material in anti-

that it is no defense to the perpetrator of a crime that facilities for its commission were

narcotics operations. In recent years, it has become common practice for law enforcement

purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of

officers and agents to engage in buy-bust operations and other entrapment procedures in

persons seeking to expose the criminal, or that detectives feigning complicity in the act were

apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory

present and apparently assisting in its commission. Especially is this true in that class of

statutes.[77] They are rules of convenience designed to secure a more orderly regulation of the

cases where the offense is one of a kind habitually committed, and the solicitation merely

affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not the

furnishes evidence of a course of conduct. Mere deception by the detective will not shield

traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal

defendant, if the offense was committed by him, free from the influence or instigation of the

with crimes mala in se or those inherently wrongful and immoral.[79] Laws defining crimes mala

detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no

prohibita condemn behavior directed, not against particular individuals, but against public

defense to the latter in a prosecution for larceny, provided the original design was formed

order.[80] Violation is deemed a wrong against society as a whole and is generally unattended

independently of such agent; and where a person approached by the thief as his confederate

with any particular harm to a definite person.[81] These offenses are carried on in secret and

notifies the owner or the public authorities, and, being authorised by them to do so, assists

the violators resort to many devices and subterfuges to avoid detection. It is rare for any

the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held

member of the public, no matter how furiously he condemns acts mala prohibita, to be willing

that it is no defense to a prosecution for an illegal sale of liquor that the purchase was made by

to assist in the enforcement of the law. It is necessary, therefore, that government in detecting

a 'spotter,' detective, or hired informer; but there are cases holding the contrary." [65]

and punishing violations of these laws, rely, not upon the voluntary action of aggrieved
individuals, but upon the diligence of its own officials. This means that the police must be

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals.
In People v. Galicia,[66] the appellate court declared that "there is a wide difference between

present at the time the offenses are committed either in an undercover capacity or through
informants, spies or stool pigeons.[82]

entrapment and instigation." The instigator practically induces the would-be accused into the
commission of the offense and himself becomes a co-principal. In entrapment, ways and

Though considered essential by the police in enforcing vice legislation, the confidential

means are resorted to by the peace officer for the purpose of trapping and capturing the

informant system breeds abominable abuse. Frequently, a person who accepts payment from

lawbreaker in the execution of his criminal plan. [67] In People v. Tan Tiong,[68] the Court of

the police in the apprehension of drug peddlers and gamblers also accept payment from these

Appeals further declared that "entrapment is no bar to the prosecution and conviction of the

persons who deceive the police. The informant himself may be a drug addict, pickpocket,


pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that
government is secretly mated with the underworld and uses underworld characters to help

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court
in People v. Tiu Ua.


Entrapment, we further held, is not contrary to public policy. It is

instigation that is deemed contrary to public policy and illegal.


instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a

defense available to the accused. It is instigation that is a defense and is considered an
absolutory cause.[72] To determine whether there is entrapment or instigation, our courts have
mainly examined the conduct of the apprehending officers, not the predisposition of the
accused to commit the crime. The "objective" test first applied in United States v. Phelps has
been followed in a series of similar cases. [73] Nevertheless, adopting the "objective" approach


applied both tests by examining the conduct of the police officers in a buy-bust operation
and admitting evidence of the accused's membership with the notorious and dreaded SigueSigue Sputnik Gang. We also considered accused's previous convictions of other crimes [75] and
held that his opprobrious past and membership with the dreaded gang strengthened the
state's evidence against him. Conversely, the evidence that the accused did not sell or smoke
marijuana and did not have any criminal record was likewise admitted in People v.


thereby sustaining his defense that led to his acquittal.

with unscrupulous, corrupt and exploitative law enforcers. Like the informant, unscrupulous
law enforcers' motivations are legion-- harassment, extortion, vengeance, blackmail, or a desire
to report an accomplishment to their superiors. This Court has taken judicial notice of this

It can thus be seen that the concept of entrapment in the American jurisdiction is similar to

has not precluded us from likewise applying the "subjective" test. In People v. Boholst,

maintain law and order is not an inspiring one. [83] Equally odious is the bitter reality of dealing

ugly reality in a number of cases[84] where we observed that it is a common modus operandi of
corrupt law enforcers to prey on weak and hapless persons, particularly unsuspecting
provincial hicks.[85] The use of shady underworld characters as informants, the relative ease
with which illegal drugs may be planted in the hands or property of trusting and ignorant
persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this
Court to be extra-vigilant in deciding drug cases. [86]Criminal activity is such that stealth and
strategy, although necessary weapons in the arsenal of the police officer, become as
objectionable police methods as the coerced confession and the unlawful search. As well put by
the Supreme Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures,
wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless
enforcement. They all spring from common motivations. Each is a substitute for skillful and
scientific investigation. Each is condoned by the sinister sophism that the end, when dealing
with known criminals of the 'criminal classes,' justifies the employment of illegal means." [88]

It is thus imperative that the presumption, juris tantum, of regularity in the performance of

The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police

official duty by law enforcement agents raised by the Solicitor General be applied with studied

officers' testimonies are minor and do not detract from the veracity and weight of the

restraint. This presumption should not by itself prevail over the presumption of innocence and

prosecution evidence. The source of the money for the buy-bust operation is not a critical fact

the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the

in the case at bar. It is enough that the prosecution proved that money was paid to accused-

purity of their own temple from the prostitution of the criminal law through lawless

appellant Doria in consideration of which he sold and delivered the marijuana.

enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and
injustice lest an innocent person be made to suffer the unusually severe penalties for drug

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3
Manlangit was actually identified by PO3 Manlangit himself before the trial court. After
appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana recovered

We therefore stress that the "objective" test in buy-bust operations demands that the details of

from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside.

the purported transaction must be clearly and adequately shown. This must start from the

This is why the carton box contained eleven (11) bricks of marijuana when brought before the

initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or

trial court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks,

payment of the consideration until the consummation of the sale by the delivery of the illegal

however, were identified and marked in court. Thus:

drug subject of the sale. [92] The manner by which the initial contact was made, whether or not
through an informant, the offer to purchase the drug, the payment of the "buy-bust" money,
and the delivery of the illegal drug, whether to the informant alone or the police officer, must
be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully
induced to commit an offense. Criminals must be caught but not at all cost. At the same time,
however, examining the conduct of the police should not disable courts into ignoring the

"ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify
that box?

accused's predisposition to commit the crime. If there is overwhelming evidence of habitual

delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts

should look at all factors to determine the predisposition of an accused to commit an offense in

pieces of marijuana brick we confiscated from the suspect, sir.

This is the box that I brought to the crime laboratory which contained the eleven

so far as they are relevant to determine the validity of the defense of inducement.

Please open it and show those eleven bricks.

In the case at bar, the evidence shows that it was the confidential informant who initially
contacted accused-appellant Doria. At the pre-arranged meeting, the informant was
accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed
the marked money to accused-appellant Doria as advance payment for one (1) kilo of
marijuana. Accused-appellant Doria was apprehended when he later returned and handed the


Witness bringing out from the said box...

ATTY. VALDEZ, Counsel for Violeta Gaddao:

brick of marijuana to PO3 Manlangit.

Your Honor, I must protest the line of questioning considering the fact that we are now dealing
PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and
his credibility was not crumpled on cross-examination by defense counsel. Moreover, PO3

with eleven items when the question posed to the witness was what was handed to him by

Manlangit's testimony was corroborated on its material points by SPO1 Badua, his back-up
security. The non-presentation of the confidential informant is not fatal to the prosecution.


So be it.

Informants are usually not presented in court because of the need to hide their identity and
preserve their invaluable service to the police. [93] It is well-settled that except when the
appellant vehemently denies selling prohibited drugs and there are material inconsistencies in
the testimonies of the arresting officers,


or there are reasons to believe that the arresting

officers had motives to testify falsely against the appellant, [95] or that only the informant was
the poseur-buyer who actually witnessed the entire transaction, [96] the testimony of the


May we make it of record that the witness is pulling out item after item from

the box showed to him and brought in front of him.



informant may be dispensed with as it will merely be corroborative of the apprehending

officers' eyewitness testimonies.[97] There is no need to present the informant in court where
the sale was actually witnessed and adequately proved by prosecution witnesses. [98]

Now tell the court, how did you know that those are the eleven bricks?


Because I marked it with my own initials before giving it to the investigator and

before we brought it to the PCCL, your Honor.


I have markings on these eleven bricks, sir.


Point to the court, where are those markings?


Here, sir, my signature, my initials with the date, sir.



Witness showed a white wrapper and pointing to CLM and the signature.

Whose signature is that?

May we request that a tag be placed on this white plastic bag and this

be marked as Exhibit "D?"


Mark it as Exhibit "D."

To stress, who made the entries of this date, Exhibit "A" then the other letters and figures

on this plastic?

Your Honor, may we just limit the inquiry to the basic question of the fiscal

as to what was handed to him by the accused Jun, your Honor?

This one, the signature, I made the signature, the date and the time and this Exhibit "A."


How about this one?

I don't know who made this marking, sir.

Your Honor, there is already a ruling by this Honorable Court, your Honor,

despite reconsideration.

Let the prosecution do its own thing and leave the appreciation of what it has done

to the court.

We submit, your Honor.

This brick is the one that was handed to me by the suspect Jun, sir.

May it be of record that this was just entered this morning.

I am asking you about this "itim" and not the "asul."

This CLM, the date and the time and the Exhibit "A," I was the one who made these

markings, sir.

Why do you know that that is the thing? Are you sure that is not "tikoy?"

May we place on record that the one that was enclosed...

Yes, your Honor.


What makes you so sure?

I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked

before I brought it to the PCCL, your Honor.


What are you sure of?

I am sure that this is the brick that was given to me by one alias Jun, sir.

What makes you so sure?

Your Honor, there are also entries included in that enclosure where it

appears D-394-95, also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to
make it of record that there are other entries included in the enclosure.

Noted. The court saw it.

Now, and this alleged brick of marijuana with a piece of paper, with a newspaper

wrapping with a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL"
be marked as our Exhibit "D-2?"

Tag it. Mark it.

This particular exhibit that you identified, the wrapper and the contents was given

(a) When, in his presence, the person to be arrested has committed, is actually

to you by whom?

committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of

It was given to me by suspect Jun, sir.

facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or

At the corner of Boulevard and Jacinto St., sir.

How about the other items that you were able to recover?

has escaped while being transferred from one confinement to another.



Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." Appellant Doria was

These other marijuana bricks, because during our follow-up, because according to

caught in the act of committing an offense. When an accused is apprehended in flagrante

Jun the money which I gave him was in the hands of Neneth and so we proceeded to the

delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound

house of Neneth, sir.

to arrest him even without a warrant.[104]


The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by
suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick, including the
newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and
described as weighing nine hundred seventy (970) grams.


We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for
almost one hour for appellant Doria to give them the one kilo of marijuana after he
"paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the
money and the marijuana in the case at bar did not change hands under the usual "kaliwaan"
system. There is no rule of law which requires that in "buy-bust" operations there must be a
simultaneous exchange of the marked money and the prohibited drug between the poseurbuyer and the pusher. [101] Again, the decisive fact is that the poseur-buyer received the
marijuana from the accused-appellant.[102]
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful.
Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure, to wit:
"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without
a warrant, arrest a person:

The warrantless arrest of appellant Gaddao, the search of her person and residence, and the
seizure of the box of marijuana and marked bills are different matters.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence
obtained without such warrant is inadmissible for any purpose in any proceeding. [105] The rule
is, however, not absolute. Search and seizure may be made without a warrant and the evidence
obtained therefrom may be admissible in the following instances: [106] (1) search incident to a
lawful arrest;[107] (2) search of a moving motor vehicle; [108] (3) search in violation of customs
laws;[109] (4) seizure of evidence in plain view; [110] (5) when the accused himself waives his right
against unreasonable searches and seizures.[111]
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and
the search and seizure of the box of marijuana and the marked bills were likewise made
without a search warrant. It is claimed, however, that the warrants were not necessary
because the arrest was made in "hot pursuit" and the search was an incident to her lawful
To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3)
instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as
aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows
"ATTY VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis for that question.

This particular exhibit that you identified, the wrapper and the contents was given to you


SPO1 Badua testified on cross-examination that:

by whom?

It was given to me by suspect Jun, sir.


At the corner of Boulevard and Jacinto Street, sir.

How about the other items that you were able to recover?

What was your intention in going to the house of Aling Neneth?

To arrest her, sir.

But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling

Neneth was there?


Yes, sir.

As far as you can see, she was just inside her house?

I saw her outside, sir.

She was fetching water as a matter of fact?

house of Neneth, sir.

She was `sa bandang poso.'


Carrying a baby?

At Daang Bakal near the crime scene at Shaw Boulevard, sir.

No, sir.

And what happened upon arrival thereat?

At that particular time when you reached the house of Aling Neneth and saw her

We saw alias Neneth inside the house and we asked him to give us the buy-bust


We submit at this juncture, your Honor, that there will be no basis for that


There is. Answer.

These other marijuana bricks, because during our follow-up, because according to Jun

the money which I gave him was in the hands of Neneth and so we proceeded to the

outside the house, she was not committing any crime, she was just outside the house?

money, sir.

No, sir.

She was not about to commit any crime because she was just outside the house

You mentioned "him?"

doing her daily chores. Am I correct?


Her, sir. We asked her to give us the money, the marked money which Jun gave her,


And what happened?

I just saw her outside, sir.

And at that point in time you already wanted to arrest her. That is correct, is it


At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.

Yes, sir.

Now, if any memory of your testimony is correct, according to you SPO1 Manlangit


approached her?
No basis.

PO3 Manlangit, sir.

You did not approach her because PO3 Manlangit approached her?

Yes, sir.

During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was


Alright. I will ask you a question and I expect an honest answer. According to the

records, the amount of P1,600.00 was recovered from the person of Aling Neneth. That's

taking place, you were just in the side lines?


I was just watching, sir.

Yes, sir, the buy-bust money.

So you were just an on-looker to what Manlangit was doing, because precisely according

What you are now saying for certain and for the record is the fact that you were not the

to you your role in this buy-bust operation was as a back-up?

one who retrieved the money from Aling Neneth, it was Manlangit maybe?

Yes, sir.

I saw it, sir.

Who got the alleged marijuana from inside the house of Mrs. Neneth?

It was Manlangit who got the money from Aling Neneth?

PO3 Manlangit, sir.

The buy-bust money was recovered from the house of Aling Neneth, sir.

Manlangit got the marijuana?

It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that

what you are trying to tell the Court?


Yes, sir.

No, sir.

And the money from Aling Neneth?


I don't know, sir.

You did not even know who got the money from Aling Neneth?

I am through with this witness, your Honor."[113]

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give

There is no basis for this question, your Honor. Money, there's no testimony on that.

ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime.
Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to
flee from the policemen to justify her arrest in "hot pursuit." [114] In fact, she was going about
her daily chores when the policemen pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second instance of Rule
113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113


must be based upon "probable cause" which means an "actual belief or reasonable grounds of
suspicion."[115] The grounds of suspicion are reasonable when, in the absence of actual belief of

I was asking him precisely.

the arresting officers, the suspicion that the person to be arrested is probably guilty of

committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently

the items that they observe may be evidence of a crime, contraband or otherwise subject to

strong in themselves to create the probable cause of guilt of the person to be arrested. [116] A


reasonable suspicion therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest.[117]

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made
by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant
Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the
marked money was.[118] Appellant Doria did not point to appellant Gaddao as his associate in
the drug business, but as the person with whom he left the marked bills. This identification
does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-

So here we are. When you and Badua arrived, Aling Neneth was inside the house?

Yes, sir.

Badua demanded from Aling Neneth the buy-bust money?

Yes, sir.

At that particular instance, you saw the carton?

Yes, sir.

seizure valid.

This carton, according to you was under a table?

Objects falling in plain view of an officer who has a right to be in the position to have that view

Yes, sir, dining table.

I noticed that this carton has a cover?

Yes, sir.

I ask you were the flaps of the cover raised or closed?

hand[125] and its discovery inadvertent.[126]

It was open, sir. Not like that.

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The


accused in pushing drugs. Appellant Doria may have left the money in her house, [119] with or
without her knowledge, with or without any conspiracy. Save for accused-appellant Doria's
word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug
pushing. If there is no showing that the person who effected the warrantless arrest had, in his
own right, knowledge of facts implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable.[120]
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search
of her person and home and the subsequent seizure of the marked bills and marijuana cannot
be deemed legal as an incident to her arrest. This brings us to the question of whether the
trial court correctly found that the box of marijuana was in plain view, making its warrantless

are subject to seizure even without a search warrant and may be introduced in evidence.

The "plain view" doctrine applies when the following requisites concur: (a) the law

enforcement officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of the evidence in plain
view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may
be evidence of a crime, contraband or otherwise subject to seizure. [122] The law enforcement
officer must lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area.[123] In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused.


The object must be open to eye and

difficulty arises when the object is inside a closed container. Where the object seized was
inside a closed package, the object itself is not in plain view and therefore cannot be seized
without a warrant. However, if the package proclaims its contents, whether by its distinctive
configuration, its transparency, or if its contents are obvious to an observer, then the contents
are in plain view and may be seized. [127] In other words, if the package is such that an

Go down there. Show to the court.


experienced observer could infer from its appearance that it contains the prohibited article,
then the article is deemed in plain view. [128] It must be immediately apparent to the police that

Witness went down the witness stand and approached a carton box.

Like this, sir.

When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not


I just don't know if she was frisked already by Badua, sir.

Who got hold of this?

I was the one, sir.

You were the one who got this?

Yes, sir.

At that particular point in time, you did not know if the alleged buy-bust money was

Can we describe it?

One flap is inside and the other flap is standing and with the contents visible.

At this juncture, you went inside the house?

Yes, sir.

And got hold of this carton?

Yes, sir.

Did you mention anything to Aling Neneth?

already retrieved by Badua?


Yes, sir.

You went inside the house?

Yes, sir.

You did not have any search warrant?

Yes, sir.

In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs.

Gadao was in possession of the buy-bust money because according to you, you did not know
whether Badua already retrieved the buy-bust money from her?

I asked her, what's this...

No, no. no. did you mention anything to Aling Neneth before getting the carton?

I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he

Yes, sir.

How far was this from the door?

asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.

Two and a half meters from the door, sir. It was in plain view.

Making reference to the marijuana that was given by alias Jun?

Under the table according to you?

Yes, sir.

Yes, sir, dining table.

Somewhere here?


It's far, sir.

By reading it, it will connote... this is not a piece of plastic.



May we request the witness to place it, where he saw it?

What is that? What can you say, Fiscal? I'm asking you?

Here, sir.


What you see is a carton?

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may
be big or a small one, for record purposes.

Yes, sir, with plastic.

Marked "Snow Time Ice Pop?"

Yes, sir.

With a piece of plastic visible on top of the carton?

Yes, sir.

That is all that you saw?

Yes, sir.

For the record, your Honor...

You were only able to verify according to you...

Panero, wait. Because I am objecting to the words a piece of plastic. By reading it...
That's a piece of plastic.

Leave that to the court.
Leave that to the court.

The only reason according to you, you were able to... Look at this, no even

Superman... I withdraw that. Not even a man with very kin [sic] eyes can tell the
contents here. And according to the Court, it could be "tikoy," is it not [sic]?

Yes, sir.


Yes, sir.

Canned goods?

Yes, sir.

It could be ice cream because it says Snow Pop, Ice Pop?

I presumed it was also marijuana because it may ...

I am not asking you what your presumptions are. I'm asking you what it could

"The Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law enforcement officers against those who would inflict this

possibly be.

malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the

It's the same plastic, sir.

protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against


any manner of high-handedness from the authorities, however praiseworthy their intentions.

I'm not even asking you that question so why are you voluntarily saying the information. Let

Those who are supposed to enforce the law are not justified in disregarding the right of the

the prosecutor do that for you.

individual in the name of order. Order is too high a price for the loss of liberty. As Justice
Holmes, again, said, 'I think it a less evil that some criminals should escape than that the
government should play an ignoble part.' It is simply not allowed in the free society to violate a


law to enforce another, especially if the law violated is the Constitution itself." [140]

Continue. Next question.


Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section



PO3 Manlangit and the police team were at appellant Gaddao's house because they were led
there by appellant Doria. The Narcom agents testified that they had no information on
appellant Gaddao until appellant Doria named her and led them to her. [131] Standing by the
door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two
and a half meters away was the dining table and underneath it was a carton box. The box was
partially open and revealed something wrapped in plastic.

were marijuana because he himself checked and marked the said contents. [132] On crossexamination, however, he admitted that he merely presumed the contents to be marijuana
because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the
records reveals that the plastic wrapper was not colorless and transparent as to clearly
manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was
individually wrapped in old newspaper and placed inside plastic bags-- white, pink or
blue in color.[133] PO3 Manlangit himself admitted on cross-examination that the contents
of the box could be items other than marijuana. He did not know exactly what the box
contained that he had to ask appellant Gaddao about its contents. [134] It was not
immediately apparent to PO3 Manlangit that the content of the box was marijuana. The
marijuana was not in plain view and its seizure without the requisite search warrant was in
violation of the law and the Constitution. [135] It was fruit of the poisonous tree and should have
been excluded and never considered by the trial court.[136]

accused-appellant Gaddao does not justify a finding that she herself is guilty of the crime

Apropos is our ruling in People v. Aminnudin,

ranging from P500,000.00 to P10 million, to wit:

"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs .-- The
penalty of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to
ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any


In every prosecution for illegal sale of dangerous drugs, what is material is the submission of
proof that the sale took place between the poseur-buyer and the seller thereof and the
presentation of the drug, i.e., the corpus delicti, as evidence in court.[141] The prosecution has
clearly established the fact that in consideration of P1,600.00 which he received, accusedappellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accusedappellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There
being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must
be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as
a Special Court in Criminal Case No. 3307-D is reversed and modified as follows:

The fact that the box containing about six (6) kilos of marijuana [137] was found in the house of

transportation of a prohibited drug" with the penalty of reclusion perpetua to death and a fine

prohibited drug, or shall act as a broker in any of such transactions.

In his direct examination, PO3 Manlangit said that he was sure that the contents of the box


13 of Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and


1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion

perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

Then, the buy-bust team pursued Spencer, who ran inside a bungalow-type house with steel
gate (ibid., p. 8). Having trapped Spencer inside the house, the police officers frisked him and
recovered the marked money (ibid., p. 9). The police officers likewise found appellant repacking


five (5) bricks of marijuana wrapped in a newspaper on top of the round table inside the
houses sala (TSN, April 11, 1995, p. 7). Appellant was then arrested and he confessed that the

[G.R. No. 121572. March 31, 2000]




PHILIPPINES, plaintiff-appellee,

source of the marijuana was Benguet (TSN, April 4, 1995, p. 10).




FONTANILLA, accused-appellant. E-xsm

Spencer and appellant were later taken to the precinct where they were delivered to the inquest
fiscal for further investigation (TSN, April 11, 1995, p. 8). The arresting officers then executed
an affidavit on the incident and made a request for the National Bureau of Investigation to

On May 31, 1995, the Regional Trial Court of Caloocan City, [1] convicted appellant of the crime
of illegal possession of drugs, imposing upon him the penalty of reclusion perpetua and
ordering him to pay a fine of P9,000,000.00.
As summarized by the solicitor General, the facts of this case which we find to be supported by
the records are as follows:[2]
"On February 12, 1995, at about 5:00 in the morning, prosecution witness Police Officer
Romeo Baldonado, while attending to his duties as supervising policeman of the Kalookan
Police Station, received a report from an informant that some people are selling shabu and
marijuana somewhere at Bagong Barrio, Caloocan City (TSN, April 11, 1995, p. 3; TSN, April
4, 1995, p. 3). Said informant stated that he himself succeeded in buying said drugs (ibid., p.
Hence, Police Officer Baldonado formed a buy-bust operation team with himself as team
leader and Police Officers Ernesto Andala, Ronielo Reantillo and Bismark Gaviola as members
(TSN, April 4, 1995, p. 4). Said team proceeded to the area reported to at Progreso P. Gomez,
Bagong Barrio, Kalookan City at around 5:45 in the morning of the same day (ibid., p. 3). Ky-le
Upon arrival at the area, prosecution witness Gaviola, together with the informant asset stood
at the corner of P. Gomez Street, Bagong barrio, Kalookan City, since the said spot was
identified to be the market or where the buyers of marijuana await a runner (seller).
Thereafter, a runner later identified to be Erwin Spencer approached the poseur-buyer,
Gaviola, who was asked Iiscore ba kayo (TSN, April 5, 1995, p. 22). Having answered, Iiscore
kami, Spencer then left and returned after five minutes with the marijuana (ibid., p. 22).
Gaviola then handed over the marked money and arrested Spencer, but who freed himself and
ran (TSN, April 4, 1995, p. 7).

conduct examination of the drugs seized (TSN, May 3, 1995, p. 2). The NBI Report confirmed
the drugs seized to be marijuana weighing five (5) kilos (ibid., p. 3)."
On February 15, 1995, the City Prosecutor charged appellant with the crime of illegal
possession of drugs under the following Information:[3]
"That on or about the 12th day of February 1995 in Kalookan City, M.M. and within the
jurisdiction of this Honorable Court, the above-named accused, without having been
authorized by law, did then and there wilfully, unlawfully and feloniously have in his
possession, custody and control 5.208 kgs. of Marijuana, knowing the same to be a prohibited
drugs (sic).
On March 1, 1995, appellant, duly assisted by counsel de oficio, entered a plea of not guilty.[4]
During trial, the prosecution presented as its witnesses (1) PO2 Bismark Gaviola, the poseurbuyer, (2) SPO2 Romeo Baldonado, one of the police officers who took part in the buy-bust
operation, and (3) Juliet Gelacio Mahilum, a forensic chemist at the National Bureau of
Investigation (NBI). Mahilum testified that she conducted three types of examination on the five
(5) bricks of marijuana flowering tops (chemical examination, microscopic examination, and
chromatographic examination) and that each of the five (5) bricks gave positive results for
For the defense, appellant and Angelo Bernales, a boarder at appellants house, testified. Their
version of the incident is as follows:[6]
"JOEL ELAMPARO y FONTANILLA, the accused herein, gave a very different version of the
incident. At around 6:00 to 7:30 in the morning of February 12, 1995, he was at their house
when somebody knocked at their door. His father opened the same and was informed that
somebody was looking for him. He went out and saw Erwin Spencer with handcuffs and being
held by an arresting officer. He likewise sighted PO3 Bismark Gaviola holding a big box. When
he persistently questioned Erwin Spencer as to why he was arrested, the arresting officers got

mad at him prompting them to likewise bring him to the police station where he was detained.

the apprehending officers to secure a search warrant. Lastly, appellant contends that if found

The arresting officers demanded the amount of P15,000.00 for his release. He remained in jail

guilty, the privileged mitigating circumstance of minority should be appreciated in his favor.

as he refused to accede to their demand. On the other hand, Erwin Spencer was released two
(2) days after they were jailed for the latter gave money to the police officers. (TSN, pp. 1-8, May
9, 1995). Calr-ky

The Office of the Solicitor General, for the State, contends that further surveillance was
unnecessary because the police "asset" had personal knowledge of the open buying and selling
of "marijuana" in the area, having purchased his "marijuana" a few hours before reporting the

ANGELO BERNALE (sic), a student, testified that he is renting a small room at the accused

matter to the police. Appellant also misrepresented himself in saying that Spencer was

(sic) house located at No. 2 P. Gomez St., Bagong Barrio, Kalookan City. On February 12,

released without charges considering that a separate investigation was conducted against the

1995, at about 6:00 to 7:00 oclock in the morning he was about to go out of the accused (sic)

latter. The OSG contends that appellants arrest was an incident to a lawful hot pursuit made

house to bring breakfast to his father when he sighted Erwin Spencer in handcuffs, in the

against Spencer. Appellant, in the course of the pursuit was surprised in plain view to be

company of three policemen one of whom was holding a box. Then he saw the policemen

repacking the five (5) bricks of marijuana. The OSG concedes, however, that the privileged

knocked at the door of the accused (sic) house. Shortly thereafter, the accused was taken away

mitigating circumstance of minority should be appreciated in favor of appellant.

by the policemen."
Considering the assigned errors and the foregoing contentions, we find that here the issues
After trial, the court rendered its decision,[7] disposing as follows:

pertain, first, to the assessment of credibility of witnesses; second, the validity of appellants
arrest; and third, the correctness of the penalty imposed by the trial court.

"WHEREFORE, premises considered, this Court finds accused JOEL ELAMPARO Y

FONTANILLA, GUILTY beyond reasonable doubt for violation of Section 8, Art. II of R.A. 6425,

As to the first issue, it is well-settled that the assessment of credibility of witnesses is within

and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and a fine of NINE

the province of the trial court which had an opportunity to observe the witnesses and their

MILLION (P9,000,000.00) PESOS, pursuant to Section 17 of the Death Penalty. With Costs.

demeanor during their testimonies. Unless the trial court overlooked substantial facts which
would affect the outcome of the case, we accord the utmost respect to their findings of facts.

Hence, the present appeal. Appellant now contends that the trial court erred in - [8]



As compared to the baseless disclaimers of appellant, the narration of the incident by the
prosecution witnesses appears worthy of belief, coming as it does from law enforcers who are
presumed to have regularly performed their duty in the absence of proof to the contrary. [9]Esm
Appellants claims that it is highly suspect that Spencer would offer to sell marijuana to total
strangers. However, in many cases, drug pushers did sell their prohibited articles to
prospective customers, be they strangers or not, in private as well as in public places, even in
the daytime. Indeed, some drug pushers appear to have become exceedingly daring, openly




defiant of the law. Hence, what matters is not the existing familiarity between the buyer and
the seller, or the time and venue of the sale, but the fact of agreement as well as the act
constituting sale and delivery of prohibited drugs. [10] As found a quo, it was the consummated



sale between PO2 Gaviola and Spencer which led to the eventual arrest of appellant.


As to the warrantless search, Section 2 Article III of the 1987 Constitution prohibits a search
and seizure without a judicial warrant. Further, Section 3 thereof provides that any evidence

In his brief, appellant assails the credibility of the prosecution witnesses. He contends that it

obtained without such warrant is inadmissible for any purpose in any proceeding.

is highly unusual for arresting officers to act on an information of an unknown source

without confirming the veracity of the report, and that it is incredible that a peddler of

However, not being absolute, the right against unreasonable searches and seizures is subject

marijuana would be so brazen as to approach total strangers and offer to sell them marijuana.

to exceptions. Thus, for example, Section 12 of Rule 126, of the Rules on Criminal procedure,

Appellant insists that he was charged with illegal possession of marijuana because he failed to

provides that a person lawfully arrested may be searched for "dangerous weapons or anything

pay the police officers the amount of P15,000.00 for his release, unlike Spencer, who paid said

which may be used as proof of the commission of an offense, without a search warrant."

amount. Appellant assails the legality of his arrest inside the house of his father for failure of

Five generally accepted exceptions to the right against warrantless searches and seizures have

A: It was placed on top of the table, sir.

also been judicially formulated, viz: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure.[11]marinella
Considering its factual milieu, this case falls squarely under the plain view doctrine. In People
v. Doria, 301 SCRA 668, 710-711 (1999), we held that
"Objects falling in plain view of an officer who has a right to be in the position to have that view
are subject to seizure even without a search warrant and may be introduced in evidence. The
"plain view" doctrine applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or is in a position

Q: Was Joel Elamparo alone when you saw him repacking these five (5) bricks of marijuana?
A: He has some companions in the house, his wife, 2 other women, his father and there was
one man there who was a boarder.
Q: Now you said that you saw Joel Elamparo repacking five bricks of marijuana, now who was
his companion in repacking the same?
A: He was alone, sir.

from which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; (c) it is immediately apparent to the officer that the item he observes may be

Hence, appellants subsequent arrest was likewise lawful, coming as it is within the purview of

evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer

Section 5 (a) of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

must lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came inadvertently across
a piece of evidence incriminating the accused. The object must be open to eye and hand and
its discovery inadvertent."
When Spencer wrenched himself free from the grasp of PO2 Gaviola, he instinctively ran
towards the house of appellant. The members of the buy-bust team were justified in running
after him and entering the house without a search warrant for they were hot in the heels of a
fleeing criminal. Once inside the house, the police officers cornered Spencer and recovered the
buy-bust money from him. They also caught appellant in flagrante delicto repacking the
marijuana bricks which were in full view on top of a table. PO2 Gaviola testified as to the
circumstances of appellants arrest as follows



Q: Now how were you able to enter the house?
PO2 GAVIOLA: nigel

"Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person may,
without a warrant, arrest a person:

When, in his presence, the person to be arrested has committed, is actually committing,

or is attempting to commit an offense;

Section 5 (a) is commonly referred to as the rule on in flagrante delicto arrests.[13] Here two
elements must concur: (1) the person to be arrested must execute an overt act indicating the
he has just committed, is actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the arresting officer.[14] Thus, when
appellant was seen repacking the marijuana, the police officers were not only authorized but
also duty-bound to arrest him even without a warrant. ella
Although the caption of the Information charges the appellant with violation of Section 4 of
Article II of Republic Act No. 6425, as amended by Republic Act No. 7659, [15] otherwise known
as the death penalty law, which refers to the sale, administration, delivery, distribution and

A: Because the door was already open.

transportation of prohibited drugs, the body of the Information charges appellant with the
crime of illegal possession of prohibited drugs under Section 8 of Article II of R.A. No. 6425, as

Q: When you entered the house, what happened inside the house?
A: We saw Joel Elamparo, sir. He was then repacking five (5) bricks of marijuana wrapped in a
Q: Where was it placed, this five (5) packed (sic) of marijuana?

amended by R.A. No. 7659. We have held that it is not the designation of the offense in the
Information that is controlling but the allegations therein which directly apprise the accused of
the nature and cause of the accusation against him. [16] Appellant having been fully apprised of
the elements of the crime of illegal possession of prohibited drugs, he may properly be
convicted of the crime of illegal possession of marijuana.

In drug cases, the quantity of prohibited drugs involved is determinative of the imposable

investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL

penalty. Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, provides that


when the quantity of indian hemp or marijuana is 750 grams or more, as in this case, the
penalty shall be reclusion perpetua to death and fine ranging from five hundred thousand
pesos (P500,000.00) to ten million pesos (P10,000,000.00).
Appellant having been born on January 9, 1978, [17] was only 17 years, 1 month, and 3 days
old, at the time of the commission of the crime on February 12, 1995. Beginning with our
decision in People v. Simon,[18] and reiterated in a number of decisions thereafter, the Court

Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 172074-76

June 1, 2007

has recognized the suppletory application of the rules on penalties in the Revised Penal Code
to the Dangerous Drugs Act after the amendment of the latter by Republic Act No. 7659.
Appellant being a minor over fifteen and under eighteen at the time of the commission of the
crime, he is entitled to a reduced penalty due to the privileged mitigating circumstance of
minority under Article 13 (2) of the Revised Penal code. Article 68 (2) of the Revised Penal Code
provides that the penalty next lower than that prescribed by law shall be imposed, but always
in the proper period. Applying the provisions of Article 61 (2) of the Revised Penal Code which
prescribes the rules for graduating penalties, the imposable penalty on appellant is the penalty
next lower in degree immediately following the lesser of the penalties prescribed in the









than reclusion

perpetua is reclusion temporal. There being no generic mitigating or aggravating circumstances,

the penalty ofreclusion temporal shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, the minimum shall be within the range of the penalty next lower








MARIANO, Petitioners,

RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice,
JOVENCITO R. ZUO, in his capacity as Chief State Prosecutor, the Panel of










(Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate
for Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her
capacity as Acting Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and

in degree which isprision mayor. No fine is imposable in this case, for it is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to death.[19]alonzo

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

WHEREFORE, the decision of the Regional Trial Court, Caloocan City, Branch 121, in

G.R. No. 175013

Criminal Case No. C-48478 (95) finding appellant JOEL ELAMPARO Y FONTANILLA guilty
beyond reasonable doubt of the crime of illegal possession of drugs is hereby AFFIRMED WITH
MODIFICATION that he is hereby sentenced to suffer the indeterminate penalty of ten (10)
years and one (1) day of prision mayor as minimum, and seventeen (17) years, four (4) months
and one (1) day of reclusion temporal, as maximum. Costs against appellant.

BELTRAN, Petitioner,


Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE
Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity
as Presiding Judge of Regional Trial Court of Makati City, Branch 150, Respondents.

June 1, 2007





ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial

G.R. Nos. 172070-72


June 1, 2007


their capacity as members of the Department of Justice panel of prosecutors

The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners

other individuals "conspiring and confederating with each other, x x x, did then and there

prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and

willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as

the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of

Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak

petitioners cases.

ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and
take up arms against the duly constituted government, x x x." 7 The Information, docketed as
Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R.

The Facts

Aldecoa-Delorino (Judge Delorino).

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos.
172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo),
Teodoro A. Casio (Casio), and Rafael V. Mariano (Mariano), 1 are members of the House of
Representatives representing various party-list groups. Petitioners in G.R. Nos. 172070-72 are

Beltran moved that Branch 137 make a judicial determination of probable cause against
him.8 Before the motion could be resolved, Judge Delorino recused herself from the case which
was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya).

private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to
Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against
Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case

G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No.
1017 on 24 February 2006 declaring a "State of National Emergency," police officers 3 arrested
Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in

without resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case
was re-raffled, issued an Order on 29 August 2006 denying Beltrans motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29
August 2006 and to enjoin Beltrans prosecution.

Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers
did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was

In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion

subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article

was valid and that the RTC Makati correctly found probable cause to try Beltran for such

142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in


Quezon City on 24 February 2006, on the occasion of the 20 th anniversary of the EDSA
Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who
claimed to have been present at the rally. The inquest prosecutor 4 indicted Beltran and filed
the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC). 5
The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was
subjected to a second inquest, with 1 st Lt. Lawrence San Juan (San Juan), this time for
Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The
inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue)
and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal
Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is
the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action
the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 17207476, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to
overthrow the Arroyo government. The plot was supposed to be carried out jointly by members
of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a "tactical alliance."
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable
cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed
an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March
2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the
complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had
quartered themselves inside the House of Representatives building for fear of being subjected
to warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a
masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness
against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor
Emmanuel Velasco who then gave copies of the affidavit to media members present during the
proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their
counter-affidavits. Petitioners were furnished the complete copies of documents supporting the
CIDGs letters only on 17 March 2006.
Petitioners moved for the inhibition of the members of the prosecution panel for lack of
impartiality and independence, considering the political milieu under which petitioners were
investigated, the statements that the President and the Secretary of Justice made to the media

regarding petitioners case,11 and the manner in which the prosecution panel conducted the

(a) When, in his presence, the person to be arrested has committed, is actually committing, or

preliminary investigation. The DOJ panel of prosecutors denied petitioners motion on 22

is attempting to commit an offense;

March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the
cases. However, the panel of prosecutors denied petitioners motions on 4 April 2006.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.


Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status


quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006,
issued a Resolution finding probable cause to charge petitioners and 46 others with Rebellion.
The prosecutors filed the corresponding Information with Branch 57 of the RTC Makati,
docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in
Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or]
heads" of a Rebellion.


Consequently, the petitioners in G.R. Nos. 172070-72 filed a

supplemental petition to enjoin the prosecution of Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General submits that the
preliminary investigation of petitioners was not tainted with irregularities. The Solicitor
General also claims that the filing of Criminal Case No. 06-944 has mooted the Maza petition.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail and shall be proceeded against
in accordance with section 7 of Rule 112.
The joint affidavit of Beltrans arresting officers 15 states that the officers arrested Beltran,
without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest
prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition
and no other. Consequently, when another group of prosecutors subjected Beltran to a second
inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest
void. None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of
Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had

The Issues

just committed Rebellion, sufficient to form probable cause to believe that he had committed
Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard

The petitions raise the following issues:

Beltran make an allegedly seditious speech on 24 February 2006. 17

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest

valid and (b) whether there is probable cause to indict Beltran for Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be
enjoined from continuing with the prosecution of Criminal Case No. 06-944.13
The Ruling of the Court
We find the petitions meritorious. On the Beltran Petition
The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested without


Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the

instances when such warrantless arrest may be effected, thus:

Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:

officer is to determine if the arrest of the detained person was made "in accordance with the
provisions of paragraphs (a) and (b) of Section 5, Rule 113." 18 If the arrest was not properly
effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides:
Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not
made in accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial Prosecutor
for appropriate action.

Where the recommendation for the release of the detained person is approved by the City or

(a) to remove from the allegiance to said Government or its laws:

Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary
investigation, the order of release shall be served on the officer having custody of said detainee
and shall direct the said officer to serve upon the detainee the subpoena or notice of
preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or
sworn statements of the complainant and his witnesses and other supporting evidence.

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(Emphasis supplied)
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in


relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest
void.19 Beltran would have been entitled to a preliminary investigation had he not asked the

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action

trial court to make a judicial determination of probable cause, which effectively took the place

done in furtherance of a political end.24

of such proceeding.
The evidence before the panel of prosecutors who conducted the inquest of Beltran for
There is No Probable Cause to Indict

Rebellion consisted of the affidavits and other documents 25 attached to the CIDG letters. We
have gone over these documents and find merit in Beltrans contention that the same are

Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted." 20 To accord respect to the
discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does
not interfere with the prosecutors determination of probable cause for otherwise, courts would
be swamped with petitions to review the prosecutors findings in such investigations. 21However,
in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear
insufficiency of evidence to support a finding of probable cause, thus denying the accused his
right to substantive and procedural due process, we have not hesitated to intervene and
exercise our review power under Rule 65 to overturn the prosecutors findings. 22 This exception
holds true here.
Rebellion under Article 134 of the Revised Penal Code is committed

insufficient to show probable cause to indict him for Rebellion. The bulk of the documents
consists of affidavits, some of which were sworn before a notary public, executed by members
of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala
(Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February
2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the
afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and
other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia,
Batangas and that after the passengers alighted, they were met by another individual who
looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP
and that (1) he attended the CPPs "10 th Plenum" in 1992 where he saw Beltran; (2) he took
part in criminal activities; and (3) the arms he and the other CPP members used were
purchased partly from contributions by Congressional members, like Beltran, who represent
party-list groups affiliated with the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for taking part
in an armed public uprising against the government. What these documents prove, at best, is
that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years

[B]y rising publicly and taking arms against the Government for the purpose of removing from

earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran

the allegiance to said Government or its laws, the territory of the Republic of the Philippines or

committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ

any part thereof, or any body of land, naval, or other armed forces or depriving the Chief

Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a

Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not automatically make
him a leader of a rebellion.

The elements of the offense are:

In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman,
1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either

Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does
not acknowledge, mere membership in the CPP does not constitute rebellion. 29 As for the
alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas
affidavit merely contained a general conclusion without any specific act showing such funding.
Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na

naihalal sa Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN

alliance" to commit rebellion. As worded, the Information does not charge Beltran with

BELTRAN, x x x."30 Such a general conclusion does not establish probable cause.

Rebellion but with Conspiracy to Commit Rebellion, a bailable offense. 34

In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated

On the Ladlad and Maza Petitions

25 February 2006,31as basis for the finding of probable cause against Beltran as Fuentes
provided details in his statement regarding meetings Beltran and the other petitioners attended
in 2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly
discussed, among others.
The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to
the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes
affidavit in their possession when they conducted the Rebellion inquest against Beltran on that
day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only
during the preliminary investigation of the other petitioners on 13 March 2006 during which
Fuentes subscribed to his statement before respondent prosecutor Velasco.
Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to
Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion
for judicial determination of probable cause. Such belated submission, a tacit admission of the
dearth of evidence against Beltran during the inquest, does not improve the prosecutions case.
Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for

The Preliminary Investigation was Tainted

With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the
prosecution of offenses, a practice rooted on public interest as the speedy closure of criminal
investigations fosters public safety.35However, such relief in equity may be granted if, among
others, the same is necessary (a) to prevent the use of the strong arm of the law in an
oppressive and vindictive manner 36 or (b) to afford adequate protection to constitutional
rights.37 The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these
The procedure for preliminary investigation of offenses punishable by at least four years, two
months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal
Procedure, thus:

Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not
Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring

Procedure.The preliminary investigation shall be conducted in the following manner:

down a government is a mere preparatory step to commit the acts constituting Rebellion under
Article 134. Even the prosecution acknowledged this, since the felony charged in the
Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to
Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan,
and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati
erred when it nevertheless found probable cause to try Beltran for Rebellion based on the
evidence before it.

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally examined
the affiants and that he is satisfied that they voluntarily executed and understood their

The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP


and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the
minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the
alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San
Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken,
denies knowing Beltran.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a
Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation.
Thus, even assuming that the Information validly charges Beltran for taking part in a
Rebellion, he is entitled to bail as a matter of right since there is no allegation in the
Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact
merely charges Beltran for "conspiring and confederating" with others in forming a "tactical

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
The respondent shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which he intends to present
against the respondent, and these shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination,

the complaints and its attachments." During the investigation, respondent prosecutors allowed

copying, or photographing at the expense of the requesting party.

the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent
prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section,

petitioners or their counsels but to members of the media who covered the proceedings.
Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days.
It was only four days later, on 17 March 2006, that petitioners received the complete copy of
the attachments to the CIDG letters.1a\^/phi1.net

with copies thereof furnished by him to the complainant. The respondent shall not be allowed
to file a motion to dismiss in lieu of a counter-affidavit.

These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March
2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f]

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating

the complainants antics during the investigation, and distributing copies of a witness affidavit
to members of the media knowing that petitioners have not had the opportunity to examine the
charges against them, respondent prosecutors not only trivialized the investigation but also

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine
or cross-examine. They may, however, submit to the investigating officer questions which may
be asked to the party or witness concerned.

lent credence to petitioners claim that the entire proceeding was a sham.
A preliminary investigation is the crucial sieve in the criminal justice system which spells for
an individual the difference between months if not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have

The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

characterized the right to a preliminary investigation as not "a mere formal or technical right"
but a "substantive" one, forming part of due process in criminal justice. 41 This especially holds
true here where the offense charged is punishable by reclusion perpetua and may be nonbailable for those accused as principals.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied)

Contrary to the submission of the Solicitor General, respondent prosecutors filing of the
Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not
moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions

Instead of following this procedure scrupulously, as what this Court had mandated in an

cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net

earlier ruling, "so that the constitutional right to liberty of a potential accused can be protected
from any material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent
prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint
(which, with its attachment, must be of such number as there are respondents) be
accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to
before any prosecutor or government official authorized to administer oath, or, in their absence
or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed
letters of Tanigue and Mendoza of the CIDG, PNP as complaints


and accepted the affidavits

attached to the letters even though some of them were notarized by a notary public without
any showing that a prosecutor or qualified government official was unavailable as required by

On Respondent Prosecutors Lack of Impartiality

We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent
Secretary of Justice, who exercises supervision and control over the panel of prosecutors,
stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We
[the DOJ] will just declare probable cause, then its up to the [C]ourt to decide x x
x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the
veracity of this statement. This clearly shows pre-judgment, a determination to file the

Section 3(a) of Rule 112.

Information even in the absence of probable cause.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint,

A Final Word

must determine if there are grounds to continue with the investigation. If there is none, he
shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after

The obvious involvement of political considerations in the actuations of respondent Secretary

receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to

of Justice and respondent prosecutors brings to mind an observation we made in another

petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of

equally politically charged case. We reiterate what we stated then, if only to emphasize the

importance of maintaining the integrity of criminal prosecutions in general and preliminary

Lucilo died on the same day of massive blood loss from multiple gunshot wounds on the face,

investigations in particular, thus:

the chest, and other parts of the body. 2 On autopsy, the municipal health officer established
the cause of death as hypovolemic shock.3

[W]e 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 observing 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 be publics perception of the impartiality of the prosecutor be
enhanced.44 1a\^/phi1.net

As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992
filed an Information charging accused-appellant Elias Lovedioro y Castro of the crime of
Murder under Article 248 of the Revised Penal Code. The Information reads:
That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the afternoon, at
Burgos Street, Municipality of Daraga, Province of Albay, Philippines, and within the

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31
May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August
2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and
172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by
respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to
DISMISS Criminal Case Nos. 06-452 and 06-944.

jurisdiction of this Honorable Court, the above-named accused, together with Gilberto
Longasa, who is already charged in Crim. Case No. 5931 before RTC, Branch I, and three (3)
others whose true identities are at present unknown and remain at large, conniving,
conspiring, confederating and helping one another for a common purpose, armed with
firearms, with intent to kill and with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously fire and shoot one SPO3 JESUS LUCILO, a member of the
Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his death, to
the damage and prejudice of his legal heirs.

After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of the
crime of Murder. The dispositive portion of said decision, dated September 24, 1993 states:

G.R. No. 112235 November 29, 1995




PHILIPPINES, plaintiff-appellee,

ELIAS LOVEDIORO y CASTRO, defendant-appellant.

WHEREFORE, in view of all the foregoing considerations, this Court finds the accused ELIAS
LOVEDIORO guilty beyond reasonable doubt as principal, acting in conspiracy with his coaccused who are still at large, of the crime of murder, defined and penalized under Article 248
of the Revised Penal Code, and hereby sentences him to suffer the penalty of Reclusion
Perpetua with all the accessories provided by law; to pay the heirs of the deceased SPO3 Jesus
Lucilo through the widow, Mrs. Remeline Lucilo, the amount of Fifty Thousand (P50,000.00)
Pesos representing the civil indemnity for death; to pay the said widow the sum of Thirty


Thousand (P30,000.00) Pesos representing reasonable moral damages; and to pay the said
widow the sum of Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos,

Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga,
Albay Public Market when a man suddenly walked beside him, pulled a .45 caliber gun from

representing actual damages, without subsidiary imprisonment however, in case of insolvency

on the part of the said accused.

his waist, aimed the gun at the policeman's right ear and fired. The man who shot Lucilo had
three other companions with him, one of whom shot the fallen policeman four times as he lay

With costs against the accused.

on the ground. After taking the latter's gun, the man and his companions boarded a tricycle
and fled. 1


The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year

Hence, the instant appeal, in which the sole issue interposed is that portion of trial court

old welder from Pilar, Sorsogon, who claimed that he knew both the victim and the man who

decision finding him guilty of the crime of murder and not rebellion.

fired the fatal shot. Armenta identified the man who fired at the deceased as Elias Lovedioro y
Castro, his nephew (appellant's father was his first cousin) and alleged that he knew the victim
from the fact that the latter was a resident of Bagumbayan.

Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as
supporting his claim that he should have been charged with the crime of rebellion, not murder.

In his Brief, he asseverates that Armenta, a police informer, identified him as a member of the

In short, political crimes are those directly aimed against the political order, as well as such

New People's Army. Additionally, he contends that because the killing of Lucilo was "a means to

common crimes as may be committed to achieve a political purpose. The decisive factor is the

or in furtherance of subversive ends," 4 (said killing) should have been deemed absorbed in the

intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the

crime of rebellion under Arts. 134 and 135 of the Revised Penal Code. Finally, claiming that he

purpose of removing from the allegiance "to the Government the territory of the Philippine

did not fire the fatal shot but merely acted as a look-out in the liquidation of Lucilo, he avers

Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch

that he should have been charged merely as a participant in the commission of the crime of

as, being part and parcel of the crime of rebellion, the former acquires the political character of

rebellion under paragraph 2 of Article 135 of the Revised Penal Code and should therefore have

the latter.

been meted only the penalty of prison mayor by the lower court.
Divested of its common complexion therefore, any ordinary act, however grave, assumes a
Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor

different color by being absorbed in the crime of rebellion, which carries a lighter penalty than

General avers that the crime committed by appellant may be considered as rebellion only if the

the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes

defense itself had conclusively proven that the motive or intent for the killing of the policeman

imperative for our courts to ascertain whether or not the act was done in furtherance of a

was for "political and subversive ends." 5 Moreover, the Solicitor General contends that even if

political end. The political motive of the act should be conclusively demonstrated.

appellant were to be convicted of rebellion, and even if the trial court had found appellant
guilty merely of being a participant in a rebellion, the proper imposable penalty is not prision

In such cases, the burden of demonstrating political motive falls on the defense, motive, being

mayor as appellant contends, but reclusion temporal, because Executive Order No. 187 as

a state of mind which the accused, better than any individual, knows. Thus, in People


v. Gempes, 10 this court stressed that:




No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for
individuals found guilty as participants in a rebellion.
We agree with the Solicitor General that the crime committed was murder and not rebellion.

Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover
this is an affirmative defense, the burden is on them to prove, or at least to state, which they
could easily do personally or through witnesses, that they killed the deceased in furtherance of
the resistance movement.

Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is
committed in the following manner:

From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are
duly proven. Both purpose and overt acts are essential components of the crime. With either of

[B]y rising publicly and taking arms against the Government for the purpose of removing from

these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases

the allegiance to said Government or its laws, the territory of the Republic of the Philippines or

where the act complained of were committed simultaneously with or in the course of the

any part thereof, of any body of land, naval or other armed forces, or depriving the Chief

rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit,

Executive or the Legislature wholly or partially, of any of their powers or prerogatives. 6

without any political motivation, it has been held that the crime would be separately
punishable as a common crime and would not be absorbed by the crime rebellion. 11

The gravamen of the crime of rebellion is an armed public uprising against the
government. 7 By its very nature, rebellion is essentially a crime of masses or multitudes
involving crowd action, which cannot be confined a priori within predetermined bounds. 8 One
aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance
are, by law, absorbed in the crime itself because they acquire a political character. This
peculiarity was underscored in the case of People v. Hernandez, 9 thus:

Clearly, political motive should be established before a person charged with a common crime
alleging rebellion in order to lessen the possible imposable penalty could benefit from the
law's relatively benign attitude towards political crimes. Instructive in this regard is the case
of Enrile


Amin, 12 where the prosecution sought to charge Senator Juan Ponce Enrile with violation of
P.D. No. 1829, 13 for allegedly harboring or concealing in his home Col. Gregorio Honasan in
spite of the senator's knowledge that Honasan might have committed a crime. This Court held,
against the prosecution's contention, that rebellion and violation of P.D 1829 could be tried
separately 14 (on the principle that rebellion is based on the Revised Penal Code while P.D.
1829 is a special law), that the act for which the senator was being charged, though
punishable under a special law, was absorbed in the crime of rebellion being motivated by, and
related to the acts for which he was charged in Enrile vs. Salazar (G.R. Nos. 92163 and 92164)
a case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding that the

prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for

evidence likewise showed that Calma was induced by an acquaintance, a civilian, to order the

rebellion had already been filed and in fact decided, the Court said:

killing on account of private differences over a ninety (90) hectare piece of land. The court
attributed no political motive for the killing, though committed by known members of the

The attendant circumstances in the instant case, however constrain us to rule that the theory

Hukbalahap movement. 20

of absorption in rebellion cases must not confine itself to common crimes but also to offenses
under special laws which are perpetrated in furtherance of the political offense. 15

People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the Court held
that "the act of killing a police officer, knowing too well that the victim is a person in authority

Noting the importance of purpose in cases of rebellion the court in Enrile vs. Amin further
underscored that:

is a mere component or ingredient of rebellion or an act done in furtherance of a rebellion."

In Dasig the Court however noted that the accused, who was charged with murder, not only
admitted his membership with the NPA but also executed an extrajudicial confession to the

[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and
he harbored or concealed Colonel Honasan simply because the latter is a friend and former
associate, the motive for the act is completely different. But if the act is committed with
political or social motives, that is in furtherance of rebellion, then it should be deemed to form
part of the crime of rebellion instead of being punished separately.

effect that he was a member of an NPA "sparrow unit," a fact to which even the Solicitor
General, in his brief therein was in agreement. The Solicitor General's brief in Dasig which this
Court favorably quoted, noted that:
[T]he sparrow unit is the liquidation squad of the New People's Army with the objective of
overthrowing the duly constituted government. It is therefore not hard to comprehend that the

It follows, therefore, that if no political motive is established and proved, the accused should be
convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the

killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends
of the NPA.22

act, and mere membership in an organization dedicated to the furtherance of rebellion would
By contrast, the Solicitor General vigorously argues for a different result in the case at bench.

not, by and of itself, suffice.

He states that accused-appellant's belated claims to membership in the NPA were not only
The similarity of some of the factual circumstances of People v. Ompad, Jr.,










to the instant




insubstantial but also self serving 23an averment to which, given a thorough review of the
circumstances of the case, we fully agree. He states:

Ompad, alias "Commander Brando," a known hitman of the NPA, as having led three other
members of the NPA in the liquidation of Dionilo Barlaan, a military informer, also in a rebel

[In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden

infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and

of proving motive or intent. It was shown that the political motivation for the killing of the

convicted of murder, not rebellion because political motive was neither alleged nor proved.

victim was the fact that Ragaul was suspected as an informer for the PC. The perpetrators even
left a letter card, a drawing on the body of Ragaul as a warning to others not to follow his

As stated hereinabove, the burden of proof that the act committed was impelled by a political
motive lies on the accused. Political motive must be alleged in the information.


It must be

established by clear and satisfactory evidence. In People v. Paz and Tica we held:
That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that
the accused has the burden of proving clearly and satisfactorily. The lone uncorroborated

example. It is entirely different in the case at bar where the evidence for the appellant merely
contains self-serving assertions and denials not substantial enough as an indicia of political
motivation in the killing of victim SPO3 Jesus Lucilo. 24
In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial
confession to having participated in the killing of Lucilo as follows:

assertion of appellant that his superiors told him of Dayrit being an informer, and his
suspicion that he was one such, is neither sufficient or adequate to establish that the

Q What was that incident if any, please narrate?

motivation for the killing was political, considering appellant's obvious interest in testifying to
that effect. 18

A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a
certainalias ALWIN, ALIAS SAMUEL and the other one unknown to me, fetched me and told

Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to establish
that the reason for the killing of their victim was to further or carry out rebellion. The evidence

me to go with them, so I asked them where, Alwin handed me a hand gun and same he
stopped/call a passenger jeepney and told me board on said jeepney. (sic)

adduced by the defense therein simply showed that appellant Francisco Buco was ordered by
Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado G. Dizon. However, the

Q Please continue.

A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so

through upon prosecution eyewitness Armenta's testimony on cross-examination that he knew

we walk towards Daraga Bakery we stopped walking due to it is raining, when the rain stopped

appellant to be a member of the NPA. Interestingly, however, in the same testimony, Armenta

we continue walking by using the road near the bakery. (sic)

admitted that he was "forced" to pinpoint appellant as an NPA member.


The logical result, of

course, was that the trial court did not give any weight and credence to said testimony. The
Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the
bakery where did you proceed?
A I am not familiar with that place, but I and my companion continue walking, at more less
4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect, to wit: "AMO
NA YADI AN TINAMPO PALUWAS" (This is the place towards the poblacion), so, I placed myself

trial court, after all, had the prerogative of rejecting only a part of a witness' testimony while
upholding the rest of it. 29 While disbelieving the portion of Armenta's testimony on appellant's
alleged membership in the NPA, the trial court correctly gave credence to his unflawed
narration about how the crime was committed. 30 Such narration is even corroborated in its
pertinent portions, except as to the identity of the gun wielder, by the testimony of the
appellant himself.

just ahead of a small store, my three (3) companions continue walking towards poblacion, later
on a policeman sporting white T-shirt and a khaki pant was walking towards me, while the

In any case, appellant's claim regarding the political color attending the commission of the

said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small

crime being a matter of defense, its viability depends on his sole and unsupported testimony.

store, when the said policeman fell on the asphalted road, ALWIN took the service firearm of

He testified that, upon the prodding of aliasAlwin and alias Samuel, he joined the NPA because

the said policeman, then we ran towards the subdivision, then my two (2) companions


commanded a tricycle then we fled until we reached a hill wherein there is a small bridge,

goals. 31 He claimed that his two companions shot Lucilo because he "had offended our

thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon.

organization," 32 without, however, specifying what the "offense" was. Appellant claimed that he




had been a member of the NPA for five months before the shooting incident. 33

Q Do you know the policeman that was killed by your companion?

As correctly observed by the Solicitor General, appellant's contentions are couched in terms so
general and non-specific 34 that they offer no explanation as to what contribution the killing

A I just came to know his name when I reached home and heard it radio, that he is JESUS

would have made towards the achievement of the NPA's subversive aims. SPO3 Jesus Lucilo, a

LUCILO. (sic)

mere policeman, was never alleged to be an informer. No acts of his were specifically shown to
have offended the NPA. Against appellant's attempts to shade his participation in the killing

Q What is your participation in the group?

with a political color, the evidence on record leaves the impression that appellant's bare
allegations of membership in the NPA was conveniently infused to mitigate the penalty
imposable upon him. It is of judicial notice that in many NPA infested areas, crimes have been

A Look-out sir.

all-too-quickly attributed to the furtherance of an ideology or under the cloak of political color
for the purpose of mitigating the imposable penalty when in fact they are no more than

Q I have nothing more to asked you what else, if there is any? (sic)

ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief Justice
Narvasa aptly observed:

A No more sir. 25
The existence of rebellious groups in our society today, and of numerous bandits, or
It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever mention
that he was a member of the New People's Army. A thorough reading of the same reveals
nothing which would suggest that the killing in which he was a participant was motivated by a
political purpose. Moreover, the information filed against appellant, based on sworn
statements, did not contain any mention or allusion as to the involvement of the NPA in the
death of SPO3 Lucilo.


Even prosecution eyewitness Nestor Armenta did not mention the NPA

irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their

activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately
continue unabated despite the best efforts that the Government authorities are exerting,
although it may be true that the insurrectionist groups of the right or the left no longer pose a
genuine threat to the security of the state. The need for more stringent laws and more rigorous
law-enforcement, cannot be gainsaid. 35

in his sworn statement of October 19, 1992. 27

In the absence of clear and satisfactory evidence pointing to a political motive for the killing of
As the record would show, allegations relating to appellant's membership in the NPA surfaced
almost merely as an afterthought, something which the defense merely picked up and followed

SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted appellant of the
crime of murder. 36 It is of no moment that a single eyewitness, Nestor Armenta, sealed his fate,
for it is settled that the testimony of one witness, if credible and positive, is sufficient to

convict. 37 Against appellant's claims that he acted merely as a look-out, the testimony of one

Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with

witness, his blood relative, free from any signs of impropriety or falsehood, was sufficient to

Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan J.

convict the accused. 38Moreover, neither may lack of motive be availing to exculpate the

Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino

appellant. Lack or absence of motive for committing a crime does not preclude conviction,
there being a reliable eyewitness who fully and satisfactorily identified appellant as the
perpetrator of the felony.


In the case at bench, the strength of the prosecution's case was

furthermore bolstered by accused-appellant's admission in open court that he and the

eyewitness, his own uncle, bore no grudges against each other.40
Finally, treachery was adequately proved in the court below. The attack delivered by appellant
was sudden, and without warning of any kind.


The killing having been qualified by treachery,

the crime committed is murder under Art. 248 of the Revised Penal Code. In the absence of
any mitigating and aggravating circumstances, the trial court was correct in imposing the
penalty of reclusion perpetua together with all the accessories provided by law.
WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993,
sentencing the accused of Murder is hereby AFFIRMED, in toto.

Bunsol, Adriano Samson and Andres Baisa, Jr. were among those sentenced in the judgment
appealed from, but they have withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L6026) the charge is for rebellion with murders, arsons and kidnappings; the accused are
Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres Balsa, Jr.
withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481
I. That on or about March 15, 1945, and for some time before the said date and continuously
thereafter, until the present time, in the City of Manila, Philippines, and the place which they
had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as
well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082,
14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and


their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in

G.R. No. L-6025

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

AMADO V. HERNANDEZ, ET AL., defendants-appellants.

an armed rebellion against the Government of the Philippines thru act theretofore committed
and planned to be further committed in Manila and other places in the Philippines, and of
which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as the
"Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully and feloniously
help, support, promote, maintain, cause, direct and/or command the "Hukbong Mapagpalaya
Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms against the
Republic of the Philippines, or otherwise participate in such armed public uprising, for the
purpose of removing the territory of the Philippines from the allegiance to the government and
laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen


publicly and taken arms to attain the said purpose by then and there making armed raids,
G.R. No. L-6026

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.

sorties and ambushes, attacks against police, constabulary and army detachments as well as
innocent civilians, and as a necessary means to commit the crime of rebellion, in connection
therewith and in furtherance thereof, have then and there committed acts of murder, pillage,
looting, plunder, arson, and planned destruction of private and public property to create and
spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid
purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians
by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947,
June, 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September

This is the appeal prosecuted by the defendants from the judgment rendered by the Court of
First Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No.
15841, People vs. Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani

12, 1950, March 28, 1950 and March 29, 1950.)

II. That during the period of time and under the same circumstances herein-above indicated
the said accused in the above-entitled case, conspiring among themselves and with several
others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known as the Committee on

Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or


associated labor unions and other "mass organizations" in different places in the Philippines,
as an active agency, organ, and instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize
its activities as the CLO thus organized, established, led and/or maintained by the herein
accused and their co-conspirators, has in fact fully cooperated in and synchronized its
activities with the activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other
organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to
thereby assure, facilitate, and effect the complete and permanent success of the abovementioned armed rebellion against the Government of the Philippines.

After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the
following: (1) that he is a member of the Communist Party of the Philippines and as such had
aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist
publication, as well as other publications of the Party; (3) that he held the position of President
of the Congress of Labor Organizations; (4) that he had close connections with the Secretariat
of the Communist Party and held continuous communications with its leaders and its
members; (5) that he furnished a mimeographing machine used by the Communist Party, as
well as clothes and supplies for the military operations of the Huks; (6) that he had contacted
well-known Communists coming to the Philippines and had gone abroad to the WFTU

The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu

conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also received by the

Andres Baisa, Jr. and Teopista Valerio, alleges:

court that Hernandez made various speeches encouraging the people to join in the Huk
movement in the provinces.

That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto
and continuously up to the present time, in the City of Manila, the seat of the government of

The court also found that there was a close tie-up between the Communist Party and the

the Republic of the Philippines, which the herein accused have intended to overthrow, and the

Congress of Labor Organizations, of which Hernandez was the President, and that this

place chosen for that purpose as the nerve center of all their rebellious atrocities in the

Congress was organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo,

different parts of the country, the said accused being then high ranking officials and/or

Mariano Balgos, Guillermo Capadocia, etc.

members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS),
the latter being the armed forces of said Communist Party of the Philippines; having come to
an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270,
14315, 14344 of the Court of First Instance of Manila and decided to commit the crime of
rebellion, and therefore, conspiring and confederating with all of the 29 accused in said
criminal cases, acting in accordance with their conspiracy and in furtherance thereof, together

We will now consider the nature and character of both the testimonial as well as the
documentary evidence, independently of each other, to find out if the said evidence supports
the findings of the court.
Testimonial Evidence

with many others whose whereabouts and identities are still unknown up to the filing of this
information, and helping one another, did then and there willfully, unlawfully and feloniously

Amado V. Hernandez took the oath as member of the Communist Party in the month of

promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan",

October, 1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the

(HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or

presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a

otherwise participate therein for the purpose of overthrowing the same, as in fact, the said

Communist he was given the pseudonyms of Victor and Soliman, and received copies of the

"Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and taken arms

Communist paper "Titis". He made various speeches on the following dates and occasions:

against the Government, by then and there making armed raids, sorties and ambushes,
attacks against police, constabulary and army detachment, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and
there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned
destruction of private and public buildings, to create and spread terrorism in order to facilitate
the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen
attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946, April 10,
1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26,
1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the
present appeals.

(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in
which he announced that the people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which
occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM
are the peasants in the field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party. 1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World
Federation of Trade Unions and after arrival from abroad a dinner was given to him by the

people of Gagalangin, at which Hernandez delivered a speech and he said that he preferred to

Executive Committee are party members, there is no time, there is no single time that those

go with the Huks because he felt safer with them than with the authorities of the Government.

directives and decisions of the organizational department, thru the TUD are being objected to
by the Executive Committee of the CLO. These directives refer to how the CLO will conduct its

(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds
in the 1947 elections, graft and corruption in the elections and that if improvement cannot be

functions. The executive committee is under the chairmanship of accused Amado V.


made by the ballots, they could be made by bullets; and enjoined the people to go to the hills
and join Luis Taruc the head of the dissidents in the Philippines.

(3) The CLO played its role in the overall Communist program of armed overthrow of the
present government and its replacement by the dictatorship of the proletariat by means of

(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the
World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and incited
the people to go to Balintawak and see Bonifacio there and thereafter join four comrades under
the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P.
Campa. He asked the unemployed to approve a resolution urging the Government to give them
jobs. In conclusion he said that if the Government fails to give them jobs the only way out was
to join the revolutionary forces fighting in the hills. He further said that Mao Tse Tung, leader
of the People's Army in China, drove Chiang Kai Shek from his country, and that Luis Taruc

propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,

medicine and other forms of material help to the HMB. This role is manifested in the very
constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained
in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579"). Thru
propaganda, the CLO promoted the aims of Communist Party and disseminated Communist
ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662),
founder of Communism in the Philippines, in the session hall of the CLO headquarters at 2070

was also being chased by Government forces run by puppets like Quirino, etc.

Azcarraga and then at 330 P. Campa;

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez

(b) The distribution of foreign communist reading materials such as the World Federation of

expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to the
field to join the liberation army of the HMB, justifying their going out and becoming heroes by
fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of
the CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist
and a Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by force
of aims and violence; thru armed revolution and replace it with the so-called dictatorship of
the proletariat the Communist Party carries its program of armed overthrow of the present
government by organizing the HMB and other forms of organization's such as the CLO, PKM,
union organizations, and the professional and intellectual group; the CLO was organized by
the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee of
the CLO were also top ranking officials of the Communist Party; activities undertaken by the
TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially the
Executive Committee. And it is a fact that since a good majority of the members of the

Trade Union Magazine, International Union of Students magazine, Voice magazine of the
marine cooks of the CLO, World Committee of the Defenders of the Peace magazine, Free
Bulgaria magazine, Soviet Russia Today magazine and World Federation of Democratic Youth
magazine (Exhs. V-911, V-907, V-910, V-899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the "Titis",
"Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor Demands Justice"
and "Hands Off Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by means of
organization of committees in the educational department as well as researches in the Worker's
Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of
party members and selected leaders of the HMB within the trade unions under the control of
the CLO. The Communist Party thru the CLO assigned Communist Party leaders and
organizers to different factories in order to organize unions. After the organization of the union,
it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will
register said union with the Department of Labor; and the orientation and indoctrination of
the workers is continued in the line of class struggle. After this orientation and infiltration of
the Communist Party members and selected leaders of the HMB with the trade unions under
the control of the CLO is already achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and anti-

Communist elements and will create a so-called revolutionary crisis. That revolutionary crisis

(j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-

will be done for the party to give directives to the HMB who are fighting in the countrysides

87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as

and made them come to the city gates. The entry of the HMB is being paved by the

President of CLO until August of following year. (Exhs. V-42, W-9)

simultaneous and sporadic strikes, by ultimate general strikes thru the management of the

2. Letters and Messages of Hernandez.

Important Documents Submitted at Trial

(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)

1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was

(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh.

referred to as "Victor" or "Soliman".

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his
sympathies for other communists, describing his experiences with Communists abroad, telling
Julie to dispose of materials that may be sent by Victor. (Exh. D-2001-2004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor
heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-20012008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor
from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not published in
the newspapers. (Exh. C-362) Letter was however published by Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to

(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120)
(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks
and Stewards, states that labor has one common struggle "the liberation of all the peoples
from the chains of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc.
Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption
and graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)

bring to the latter communications from the Communist Party. (Exh. D-1203) That Soliman
was given copies of "Titis". (Exh. D-1209)

(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for
joining the Huks. (Exhs. V-12-22, V-289)

(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels.
(Exh. F-92-93. SEC)

(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and
Government. (Exh. V-94) .

(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of
careerism and tendency to want to deal with leaders of the party"; that he should be asked to

(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks

choose to go underground or fight legally. (Exh. F-562)

North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)

(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment.

National Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization

(Exh. V-90-93)

Bureau (OB), and National Courier or Communication Division (NCD), each body performing
functions indicated in their respective names; (2) that in a meeting held on August 11, 1950

(o) Article "Progressive Philippines" (Exh. V-287)

(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)

the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under
which on September 29, 1950 the SEC organized a special warfare division, with a
technological division; (3) that on May 5, 1950 a body known as the National Intelligence
Division was created, to gather essential military intelligence and, in general, all information
useful for the conduct of the armed struggle (4) that a National Finance Committee was also

(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)

organized as a part of the Politburo and answerable to it; (5) that the country was divided into
10 Recos, the 10th Reco comprising the Manila and suburbs command; (6) that since

(r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo.
(Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the
field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh.

November, 1949 the CPP had declared the existence of a revolutionary situation and since then
the Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7) that in accordance with
such plan the CPP prepared plans for expansion and development not only of the Party but
also of the HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September
1951, the HMB from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military
operations for political purposes. The Politburo sanctioned the attacks made by the Huks on
the anniversary of the HMB on March 25, 1950. The HMB attacks that were reported to the PB
were those made in May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947;

(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for

August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946;

inclusion in Bulosan's book. (Exh. FF-1)

April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26,
1950; September 12, 1950; March 26, 1950; March 29, 1950.

(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces.
(Photographs, Exhs. X-6 RR-54-55A)

The theory of the prosecution, as stated in the lower court's decision, is as follows:

(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-

The evidence does not show that the defendants in these cases now before this Court had


taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct

(f) Had knowledge of the going underground of Capadocia and Balgos and issued press release
about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451A)

participation in the commission of the same but rather that the defendants in these cases
have cooperated, conspired and confederated with the Communist Party in the prosecution
and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the
same pattern as the CPP, having its own National Congress, a Central Committee (which acts
in the absence of and in representation of the National Congress), an Executive Committee
(which acts when the National Congress and the Executive Committee are not in session), and

(i) Associated with fellow ranking Communist leaders.

seven permanent Committees, namely, of Organization, Unemployment and Public Relations,

Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of

The Court upon consideration of the evidence submitted, found (1) that the Communist Party
was fully organized as a party and in order to carry out its aims and policies a established a

the Communist Party dominate the committees of the CLO. The supposed tie-up between CPP

and the CLO of which Hernandez was the President, is described by the court below in finding,

Hernandez is the founder and head of the CLO. As such, what was his relation to the


rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays merely the role of
propagation by

Just how the CLO coordinates its functions with the Communist Party organ under which it
operates was explained by witness Guillermo S. Calayag, one-time ranking member of the
Communist Party and the CLO who typewrites the "Patnubay sa Education" from a
handwritten draft of Capadocia, which is one of the texts used in the Worker's institute of the
CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid,
clothing, medicine and other material forms of help to the HMB, which constitutes the armed
forces of the Communist Party. Propaganda is done by lectures, meetings, and the organization
of committees of the educational department as well as researches at the CLO Worker's
Another way of helping the Communist Party of the Philippines is by allowing the Communist
Party leaders to act as organizers in the different factories in forming a union. These Party
Members help workers in the factories to agitate for the eradication of social classes and
ultimately effect the total emancipation of the working classes thru the establishment of the
so-called dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party
ideology. After the right number is secured and a union is formed under a communist leader,
this union is affiliated with the CLO and this in turn registers the same with the Department
of Labor. The orientation and indoctrination of the masses is continued with the help of the
CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It
seeks to attain this objective by first making demands from the employers for concessions
which become more and more unreasonable until the employers would find it difficult to grant
the same. Then a strike is declared. But the strikes are only preparation for the ultimate
attainment of the Communist goal of armed overthrow of the government. After the workers in
the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist
Party, the HMB, to intervene and carry the revolution now being conducted outside to within
the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the
crime charged against him and sentenced him to suffer the penalty of reclusion perpetua with
the accessories provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in
its decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado
V. Hernandez, as a Communist, was an active advocate of the principles of Communism,
frequently exhorting his hearers to follow the footsteps of Taruc and join the uprising of the
laboring classes against capitalism and more specifically against America and the Quirino
administration, which he dubbed as a regime of puppets of American imperialism. But beyond
the open advocacy of Communistic Theory there appears no evidence that he actually
participated in the actual conspiracy to overthrow by force the constituted authority.

lectures, meetings and organization of committees of education by

Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the Communist
Party and proselytize them to the Communist ideology; if, as also indicated by Calayag, the
CLO purports to attain the ultimate overthrow of the Government first by making demands
from employers for concessions until the employers find it difficult to grant the same, at which
time a strike is declared; if it is only after the various strikes have been carried out and a crisis
is thereby developed among the laboring class, that the Communist forces would intervene and
carry the revolution it is apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO
had no function but that of indoctrination and preparation of the members for the uprising
that would come. It was only a preparatory organization prior to revolution, not the revolution
itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a leader in
actual rebellion or of the actual uprising subject of the accusation. Hernandez, as President of
the CLO therefore, by his presidency and leadership of the CLO cannot be considered as
having actually risen up in arms in rebellion against the Government of the Philippines, or
taken part in the conspiracy to commit the rebellion as charged against him in the present
case; he was merely a propagandist and indoctrinator of Communism, he was not a
Communist conspiring to commit the actual rebellion by the mere fact of his presidency of the
The court below declares that since November 1949 the Communist Party of the Philippines
had declared the existence of the revolutionary situation and since then the Party had gone
underground, with the CPP leading the struggle for national integration and that in the month
of January 1950, it was decided by the said Party to intensify the HMB military operations for
political purposes. The court implicates the appellant Hernandez as a co-conspirator in this
resolution or acts of the Communist Party by his mere membership thereto. We find this
conclusion unwarranted. The seditious speeches of Hernandez took place before November,
1949 when the CPP went underground. The court below has not been able to point out, nor
have We been able to find among all acts attributed to Hernandez, any single fact or act of his
from which it may be inferred that he took part in the deliberations declaring the existence of a
revolutionary situation, or that he had gone underground. As a matter of fact the prosecution's
evidence is to the effect that Hernandez refused to go underground preferring to engage in
what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the
trial and which were confiscated from the office of the Politburo of the Communist Party. The
speeches of Hernandez were delivered before the declaration by the Communist Party of a state
of revolutionary situation in 1949. Neither was it shown that Hernandez was a member of the
Executive Committee, or of the SEC, or of the Politburo of the Communist Party; so NO
presumption can arise that he had taken part in the accord or conspiracy declaring a
revolution. In short, there has been no evidence, direct or indirect, to relate or connect the
appellant Hernandez with the uprising or the resolution to continue or maintain said uprising,

his participation in the deliberations leading to the uprising being inferred only from the fact

Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant

that he was a communist.

Hernandez, who in turn issued press releases for which he found space in the local papers. His
acts in this respect belong to the category of propaganda, to which he appears to have limited

The practice among the top Communists, as declared by the trial court appears to have been

his actions as a Communist.

for important members, if they intend actually to join the rebellion, to go underground, which
meant leaving the city, disappearing from sight and/or secretly joining the forces in the field.

The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the

The document, Exhibit F-562, which is quoted in the decision, contains the directive of the
SEC of September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside.
Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom,
retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and
other relatively exposed mass leaders.

Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments
occasioned by his term of election as president of the CLO and the impressions caused by his
acts on the Communist leaders, to the effect that he was in direct communication or
understanding with the Nacionalista Party to which he was affiliated, creates in Us the
reasonable doubt that it was not his Communistic leanings but his political ambitions, that
motivated his speeches sympathizing with the Huks. For which reason We hold that the
evidence submitted fails to prove beyond reasonable doubt that he has conspired in the
instigation of the rebellion for which he is held to account in this criminal case.

And the lower court itself found that whereas Saulo went underground and joined the
underground forces outside the City, Hernandez remained in the City, engaged in the work of
propaganda, making speeches and causing the publication of such matters as the Communist
Party leaders directed him to publish.

The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent
provision reads:

That Hernandez refused to go underground is a fact which is further corroborated by the

following reasons (excuses) given by him for not going underground, namely (1) that his term of
councilor of the City of Manila was to extend to December, 1951; and (2) that he was elected
President of the CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista
Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and
tending to want to deal with leaders of the Nacionalista Party instead of following CPP
organizational procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in
the field. But the very document dated December 3, 1949, Exhibit D-420422, cited in the
decision (printed, p. 49), is to the effect that clothes and shoes that Hernandez was supposed
to have sent have not been received. It is true that some clothes had been sent thru him to the
field, but these clothes had come from a crew member of a ship of the American President
Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore,
a certain Niagara Duplicating machine received by Hernandez from one Rolland Scott Bullard a
crew member of the SS President Cleveland, appease later to have been forwarded by him to
the officers of the SEC or the Politburo.

ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and
proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and
by prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a
criminal act of conspiracy unless transformed or converted into an advocacy of action. In the
very nature of things, mere advocacy of a theory or principle is insufficient unless the
communist advocates action, immediate and positive, the actual agreement to start an
uprising or rebellion or an agreement forged to use force and violence in an uprising of the
working class to overthrow constituted authority and seize the reins of Government itself.
Unless action is actually advocated or intended or contemplated, the Communist is a mere
theorist, merely holding belief in the supremacy of the proletariat a Communist does not yet
advocate the seizing of the reins of Government by it. As a theorist the Communist is not yet
actually considered as engaging in the criminal field subject to punishment. Only when the
Communist advocates action and actual uprising, war or otherwise, does he become guilty of
conspiracy to commit rebellion. Borrowing the language of the Supreme Court of the United
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or
on conduct can only be justified by reference to the relationship of that status or conduct to
other concededly criminal activity (here advocacy of violent overthrow), that relationship must

be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack

But the very act or conduct of his in refusing to go underground, in spite of the apparent

under the Due Process Clause of the Fifth Amendment. Membership, without more, in an

desire of the chief of the rebellion, is clear proof of his non-participation in the conspiracy to

organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by

engage in or to foster the rebellion or the uprising.

this Court to be such a relationship. ... .

We next consider the question as to whether the fact that Hernandez delivered speeches of
What must be met, then, is the argument that membership, even when accompanied by the

propaganda in favor of Communism and in favor of rebellion can be considered as a criminal

elements of knowledge and specific intent, affords an insufficient quantum of participation in

act of conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his

the organization's alleged criminal activity, that is, an insufficiently significant form of aid and

giving and rendering speeches favoring Communism would not make him guilty of conspiracy,

encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be

because there was no evidence that the hearers of his speeches of propaganda then and there

recognized that a person who merely becomes a member of an illegal organization, by that "act"

agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic

alone need be doing nothing more than signifying his assent to its purposes and activities on

government as envisaged by the principles of Communism. To this effect is the following

one hand, and providing, on the other, only the sort of moral encouragement which comes

comment of Viada:

from the knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical impetus
given to a criminal enterprise which is lent for instance by a commitment on the part of the
conspirator to act in furtherance of that enterprise. A member, as distinguished from a
conspirator, may indicate his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself to further it by any act or course
of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)

CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que
se anunciara la subasta de consumes se echaran a la calle para conseguir aunque fuera
preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un
delito de conspiracion para la sedicion? El Tribunal Supreme ha resuelto la negative al casar
cierta sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando que,
con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas
personas se conciertan para la execution de un delito y resuelven cmeterlo; y no constando que

The most important activity of appellant Hernandez appears to be the propagation of

existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta del

improvement of conditions of labor through his organization, the CLO. While the CLO of which

veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin

he is the founder and active president, has communistic tendencies, its activity refers to the

expresar el efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si

strengthening of the unity and cooperation between labor elements and preparing them for

estas aceptaron o no lo que se las propuso, resulta evidence que faltan los clementos

struggle; they are not yet indoctrinated in the need of an actual war with or against

integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.)

Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to

(Viada, Tomo I, Codigo Penal, p. 152)

suspect that his labor activities especially in connection with the CLO and other trade unions,
were impelled and fostered by the desire to secure the labor vote to support his political
ambitions. It is doubtful whether his desire to foster the labor union of which he was the head
was impelled by an actual desire to advance the cause of Communism, not merely to advance
his political aspirations.

In view of all the above circumstances We find that there is no concrete evidence proving
beyond reasonable doubt that the appellant (Hernandez) actually participated in the rebellion
or in any act of conspiracy to commit or foster the cause of the rebellion. We are constrained,
in view of these circumstances, to absolve, as We hereby absolve, the appellant Amado V.
Hernandez from the crime charged, with a proportionate share of the costs de oficio.

Insofar as the appellant's alleged activities as a Communist are concerned, We have not found,
nor has any particular act on his part been pointed to Us, which would indicate that he had
advocated action or the use of force in securing the ends of Communism. True it is, he had
friends among the leaders of the Communist Party, and especially the heads of the rebellion,
but this notwithstanding, evidence is wanting to show that he ever attended their meetings, or
collaborated and conspired with said leaders in planning and encouraging the acts of rebellion,
or advancing the cause thereof. Insofar as the furnishing of the mimeograph machine and
clothes is concerned, it appears that he acted merely as an intermediary, who passed said


All the other defendants were found guilty as accomplices in the crime of rebellion as charged
in the information and were each sentenced to suffer the penalty of 10 years and 1 day
of prision mayor, with the accessories provided by law, and to pay their proportionate share of
the costs.

machine and clothes on to others. It does not appear that he himself furnished funds or
material help of his own to the members of the rebellion or to the forces of the rebellion in the

Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is


believed useful if not necessary to lay dawn the circumstances or facts that may be
determinative of their criminal responsibility or the existence or nature thereof. To begin with,
as We have exhaustively discussed in relation to the appeal of Hernandez, we do not believe

that mere membership in the Communist Party or in the CLO renders the member liable,


either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing
more merely implies advocacy of abstract theory or principle without any action being induced
thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy
of action, namely, actual rebellion or conspiracy to commit rebellion, or acts conducive thereto
or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual
uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and
laboring class from thraldom. By membership in the HMB, one already advocates uprising and
the use of force, and by such membership he agrees or conspires that force be used to secure
the ends of the party. Such membership, therefore, even if there is nothing more, renders the
member guilty of conspiracy to commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the
ends of the rebellion like soliciting contributions, or acting as courier, he thereby becomes
guilty of conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which
latter case he commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the
defendants on various times solicited funds from the people of Mexico, Pampanga. The Court
held that the defendants were guilty of conspiracy and proposal to commit rebellion or

The trial court found him guilty as a Communist, a Secretary and Executive Committee
member of the CLO a communications center of the Communist Party, having been found in
possession of letters from Federico Maclang to Salome Cruz, and solicitor of contributions for
the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat
of the Government Workers Union, receiving copies of the Titis. Calayag testified that he was a
member of the Central Committee of the Communist Party entrusted with the duty of receiving
directives of the Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party
went underground. We have been unable to find the evidence upon which the court bases its
conclusion that he received contributions for the Huks. With these circumstances in mind, We
are not convinced beyond reasonable doubt that as a Communist he took part in the
conspiracy among the officials of the Communist Party to take part and support the rebellion
of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.

insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:
The court found him to be a Communist since 1945, an officer of an organized Communist
From the evidence adduced in this case we are of the opinion that the said defendants are
guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the
crime of conspiring to overthrow, put down, and destroy by force the Government of the United

branch in Pasay City, a member of the Central Committee and Treasurer of the CLO. He
admitted his membership and his position as member of the executive committee and
treasurer of the CLO these facts being corroborated by the witness Guillermo Calayag.

States in the Philippine Islands, and therefore we find that said defendants, and each of them,
did, together with others, in the months of February and March, 1903, in the Province of

His membership in the Communist Party dates as far back as the year 1945. As a communist,

Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the

Genaro de la Cruz received quotas and monetary contributions coming from the areas under

Government of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432,

his jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO


headquarters at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also
distributed copies of the "Titis" magazine. `

While his membership in the Communist Party plus his having received contributions for the
The court found him to be a Communist with various aliases, a member of the Central
Committee of the CLO member of the Central Committee of the CPP and as such committed to
the establishment of the dictatorship of the proletariat To the same effect is the testimony of
Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion.
He should therefore be absolved of the charges contained in the information.

party indicate that he is an active member, it was not shown that the contributions that he
received from Communist Party members were received around the year 1950 when the
Central Committee of the Communist Party had already agreed to conspire and go
underground and support the Huk rebellion. Under these circumstances We cannot find him
guilty of conspiracy to commit rebellion because of the lack of evidence to prove his guilt
beyond reasonable doubt.

The court found him to be an organizer of HMB among the mill workers, solicited contributions

The facts found by the court are sufficiently supported by the communications and evidence

for the HMB and Central Committee member of the CLO as per Testimony of Guillermo

submitted by the prosecution. The exhibits show that he was in constant communication with


the communists; serving them as courier. His oath as a member of the Communist Party was
submitted in court and in it he admits obedience to all orders of the Party and to propagate the

He admitted that he joined the Communist Party because he was made to believe that the

stability of the PKP.

Party is for the welfare of the laborers. He also admitted being a member of the Central
Committee of the CLO Calayag testified that Lumanog organized the HMB units of the

Considering that the PKP was engaged in an actual uprising against the constituted

Communist Party in the Lumber Unions and attended a Communist meeting held by Maclang.

Government and that Bayani Espiritu was in constant communication with the Communist
Party and served it as courier, We believe that the court was fully justified in finding him

Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to
one Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila

guilty. However, We believe that not having actually taken up arms in the uprising he may only
be declared guilty of conspiracy to commit rebellion.

for the use of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is
evident that by giving his contributions he actually participated in the conspiracy to overthrow

The court below found that this appellant joined the Communists in 1938 in San Luis,

the government and should, therefore, be held liable for such conspiracy, and should be

Pampanga, under Casto Alejandrino, who later became her common-law husband; that her

sentenced accordingly.

aliases are "Estrella" and "Star"; that she was found in possession of various documents
written to top Communists like Alejandrino, Lava and Romy, as well as a letter from Taruc


congratulating her for the delivers, of a son.

The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in

activities consisted in soliciting contributions, in cash and in kind, from city residents for the
use of the HMB, turning over said collections to the Party; that he has given asylum to a
wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which house was used as

Nueva Ecija, later Chairman of the Finance Department, and then promoted to Finance Officer
of the Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered
letter from the mountains to Teopista Valerie, who was in turn also a courier.

Military post. The above findings of the court are fully supported by the testimony of Domingo

Without considering the close relationship that she had with top Communist Casto
Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also a Huk,

Considering that while he has not actually taken part in the rebellion, he has shown sympathy
with the cause by soliciting contributions for it and had given shelter to the Huks. We feel that
the court was fully justified in finding him guilty, but We hold that he should be declared liable
merely as a co-conspirator in the crime of conspiracy to commit rebellion, and should be

a member of the HMB from 1942 to 1951. As she was a Communist and at the same time a
member of the HMB, and considering that the HMB was engaged in an uprising to uproot the
legitimate government, there cannot be any question that she was in conspiracy with the other
members of her Party against the constituted government. We hold, therefore, that the

sentenced accordingly.

evidence proves beyond reasonable doubt that she is guilty of conspiracy to commit rebellion.



This appellant was found by the court to be a Communist, he having admitted membership in

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano

the Communist Party since 1945; that his duties as a Communist was to help in the office of
the National Finance Committee, assorting papers and written documents; that sometimes he

P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been
apprehended at the time of the trial.

accompanied the purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to
the Huks; that he is a member of the Communication Division of the CPP in Manila, in charge


of distribution of letters or communications; that he admits having written to Salome Cruz,


courier of the Communist Party, when he asked for his necessities, such as money and shoes,







In the case at bar the prosecution is for actual rebellion which consists in rising publicly and


taking aims against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime
defined in Article 134 of the Revised Penal Code; whereas Evangelista was charged and
convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No.
292). As the specific charge against appellants is that of rising up in arms in actual rebellion
against the Government, they cannot be held guilty of inciting the people to arms under Article
138, which is a different offense.

WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V.
Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the
charges contained in the information, with their proportionate share of the costs de oficio. The
defendants-appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R.
No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal
Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit
rebellion, as defined and punished in Article 136 of the Revised Penal Code, and each and

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes

everyone of them is hereby sentenced to suffer imprisonment for five years, four months and

membership in any organization or association committed to subvert the Government, cannot

twenty-one days of prision correccional, and to pay a fine of P5,000.00, with subsidiary

be applied to the appellants because said Act was approved on June 20, 1957 and was not in

imprisonment in case of insolvency and to pay their proportional share of the costs. So

force at the time of the commission of the acts charged against appellants (committed 1945-


1950) ; the Anti-Subversion Act punishes participation or membership in an organization

committed to overthrow the duly constituted Government, a crime district from that of actual
rebellion with which appellants are charged.