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On November 23, 2009, 57 people including 32 journalists and
media practitioners were killed while on their way to Shariff
Aguak in Maguindanao. Touted as the worst election-related
violence and the most brutal killing of journalists in recent
history, the tragic incident which came to be known as the
Maguindanao Massacre spawned charges for 57 counts of
murder and an additional charge of rebellion against 197
accused, docketed as Criminal Case Nos. Q-09-162148-72, Q09-162216-31, Q-10-162652-66, and Q-10-163766, commonly
entitled People v. Datu Andal Ampatuan, Jr., et al. Following
the transfer of venue and the reraffling of the cases, the cases
are being tried by Presiding Judge Jocelyn Solis-Reyes of
Branch 221 of the Regional Trial Court (RTC) of Quezon
City inside Camp Bagong Diwa inTaguig City.
Almost a year later or on November 19, 2010, the National
Union of Journalists of the Philippines (NUJP), ABS-CBN
Broadcasting Corporation, GMA Network, Inc., relatives of the
victims,[1] individual journalists[2] from various media entities,
and members of the academe[3] filed a petition before this Court
praying that live television and radio coverage of the trial in
these criminal cases be allowed, recording devices (e.g., still

cameras, tape recorders) be permitted inside the courtroom to

assist the working journalists, and reasonable guidelines be
formulated to govern the broadcast coverage and the use of
devices.[4] The Court docketed the petition as A.M. No. 10-115-SC.
In a related move, the National Press Club of the
Philippines[5] (NPC)
and Alyansa
Mamamahayag[6] (AFIMA) filed on November 22, 2010 a
petition praying that the Court constitute Branch 221 of RTCQuezon City as a special court to focus only on the
Maguindanao Massacre trial to relieve it of all other pending
cases and assigned duties, and allow the installation inside the
courtroom of a sufficient number of video cameras that shall
beam the audio and video signals to the television monitors
outside the court.[7] The Court docketed the petition
as A.M. No. 10-11-6-SC.
President Benigno S. Aquino III, by letter of November 22,
2010[8] addressed to Chief Justice Renato Corona, came out in
support of those who have petitioned [this Court] to permit
television and radio broadcast of the trial." The President
expressed earnest hope that [this Court] will, within the many
considerations that enter into such a historic deliberation,attend
to this petition with the dispatch, dispassion and humaneness,
such a petition merits.[9] The Court docketed the matter as A.M.
No. 10-11-7-SC.

By separate Resolutions of November 23, 2010,[10] the

Court consolidated A.M. No. 10-11-7-SC with A.M. No. 1011-5-SC. The Court shall treat in a separate Resolution A.M.
No. 10-11-6-SC.
Meanwhile, various groups[11] also sent to the Chief Justice
their respective resolutions and statements bearing on these
The principal accused in the cases, Andal Ampatuan, Jr.
(Ampatuan), filed a Consolidated Comment of December 6,
2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The
President, through the Office of the Solicitor General (OSG),
and NUJP, et al. filed their respective Reply of January 18,
2011 and January 20, 2011.Ampatuan also filed a Rejoinder
of March 9, 2011.
On Broadcasting the Trial of the Maguindanao Massacre
Petitioners seek the lifting of the absolute ban on live television
and radio coverage of court proceedings. They principally urge
the Court to revisit the 1991 ruling inRe: Live TV and Radio
Coverage of the Hearing of President Corazon C. Aquinos
Libel Case[12] and the 2001 ruling in Re: Request Radio-TV

Coverage of the Trial in the Sandiganbayan of the Plunder

Cases Against the Former President Joseph E.
Estrada[13] which rulings, they contend, violate the doctrine that
proposed restrictions on constitutional rights are to be narrowly
construed and outright prohibition cannot stand when
regulation is a viable alternative.
Petitioners state that the trial of the Maguindanao Massacre
cases has attracted intense media coverage due to the
gruesomeness of the crime, prominence of the accused, and the
number of media personnel killed. They inform that reporters
are being frisked and searched for cameras, recorders, and
cellular devices upon entry, and that under strict orders of the
trial court against live broadcast coverage, the number of media
practitioners allowed inside the courtroom has been limited to
one reporter for each media institution.
The record shows that NUJP Vice-Chairperson Jose Jaime
Espina, by January 12, 2010 letter[14] to Judge Solis-Reyes,
requested a dialogue to discuss concerns over media coverage
of the proceedings of the Maguindanao Massacre cases. Judge
Solis-Reyes replied, however, that matters concerning media
coverage should be brought to the Courts attention through
appropriate motion.[15] Hence, the present petitions which assert
the exercise of the freedom of the press, right to information,
right to a fair and public trial, right to assembly and to petition

the government for redress of grievances, right of free access to

courts, and freedom of association,subject to regulations to be
issued by the Court.
The Court partially GRANTS pro hac vice petitioners
prayer for a live broadcast of the trial court
proceedings, subject to the guidelines which shall be
enumerated shortly.
Putts Law[16] states that technology is dominated by two types
of people: those who understand what they do not manage, and
those who manage what they do not understand. Indeed,
members of this Court cannot strip their judicial robe and don
the experts gown, so to speak, in a pretense to foresee and
fathom all serious prejudices or risks from the use of
technology inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is
once again faced with the same task of striking that delicate
certainly complementary rights.
The indication of serious risks posed by live media coverage
to the accuseds right to due process, left unexplained and
unexplored in the era obtaining in Aquino andEstrada, has left
a blow to the exercise of press freedom and the right to public

The rationale for an outright total prohibition was

shrouded, as it is now, inside the comfortable cocoon of a
feared speculation which no scientific study in the
Philippine setting confirms, and which fear, if any, may be
dealt with by safeguards and safety nets under existing
rules and exacting regulations.
In this day and age, it is about time to craft a win-win
situation that shall not compromise rights in the criminal
administration of justice, sacrifice press freedom and allied
rights, and interfere with the integrity, dignity and solemnity of
judicial proceedings. Compliance with regulations, not
curtailment of a right, provides a workable solution to the
concerns raised in these administrative matters, while, at the
same time, maintaining the same underlying principles upheld
in the two previous cases.
The basic principle upheld in Aquino is firm [a] trial of any
kind or in any court is a matter of serious importance to all
concerned and should not be treated as a means of
entertainment[, and t]o so treat it deprives the court of the
dignity which pertains to it and departs from the orderly and
serious quest for truth for which our judicial proceedings are
formulated. The observation that [m]assive intrusion of
representatives of the news media into the trial itself can so
alter and destroy the constitutionally necessary atmosphere and
decorum stands.

The Court concluded in Aquino:

Considering the prejudice it poses to the defendant's
right to due process as well as to the fair and orderly
administration of justice, and considering further that the
freedom of the press and the right of the people to
information may be served and satisfied by less
distracting, degrading and prejudicial means, live radio
and television coverage of court proceedings shall not be
allowed. Video footages of court hearings for news
purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their
counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be
permitted during the trial proper.
Accordingly, in order to protect the parties' right to due
process, to prevent the distraction of the participants in
the proceedings and in the last analysis, to avoid
miscarriage of justice, the Court resolved to PROHlBIT
live radio and television coverage of court proceedings.
Video footage of court hearings for news purposes shall
be limited and restricted as above indicated.[17]

The Court had another unique opportunity in Estrada to revisit

the question of live radio and television coverage of court
proceedings in a criminal case. It held that [t]he propriety of
granting or denying the instant petition involve[s] the weighing

out of the constitutional guarantees of freedom of the press and

the right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand, along
with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial. The Court
The Court is not all that unmindful of recent
technological and scientific advances but to chance
forthwith the life or liberty of any person in a hasty bid
to use and apply them, even before ample safety nets are
provided and the concerns heretofore expressed are aptly
addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
In resolving the motion for reconsideration, the Court
in Estrada, by Resolution of September 13, 2001, provided a
glimmer of hope when it ordered the audio-visual recording of
the trial for documentary purposes, under the following
x x x (a) the trial shall be recorded in its entirety,
excepting such portions thereof as the Sandiganbayan
may determine should not be held public under Rule
119, 21 of the Rules of Criminal Procedure; (b) cameras
shall be installed inconspicuously inside the courtroom
and the movement of TV crews shall be regulated

consistent with the dignity and solemnity of the

proceedings; (c) the audio-visual recordings shall be
made for documentary purposes only and shall be made
without comment except such annotations of scenes
depicted therein as may be necessary to explain them;
(d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the
cases against the former President shall be prohibited
under pain of contempt of court and other sanctions in
case of violations of the prohibition; (e) to ensure that
the conditions are observed, the audio-visual recording
of the proceedings shall be made under the supervision
and control of the Sandiganbayan or its Division
concerned and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with the
release of the audio-visual recordings for public
broadcast, the original thereof shall be deposited in the
National Museum and the Records Management and
Archives Office for preservation and exhibition in
accordance with law.
Petitioners note that the 1965 case of Estes v.
Texas which Aquino and Estrada heavily cited, was
borne out of the dynamics of a jury system, where the
considerations for the possible infringement of the
impartiality of a jury, whose members are not
necessarily schooled in the law, are different from that of
a judge who is versed with the rules of evidence. To
petitioners, Estes also does not represent the most
contemporary position of the United States in the wake
of latest jurisprudence[21] and statistical figures revealing
that as of 2007 all 50 states, except the District of
Columbia, allow television coverage with varying
degrees of openness.

Other jurisdictions welcome the idea of media

coverage. Almost all the proceedings of United Kingdoms
Supreme Court are filmed, and sometimes broadcast. [22]The
International Criminal Court broadcasts its proceedings via
video streaming in the internet.[23]
On the media coverages influence on judges, counsels and
witnesses, petitioners point out that Aquino and Estrada,
like Estes, lack empirical evidence to support the sustained
conclusion. They point out errors of generalization where the
conclusion has been mostly supported by studies on American
attitudes, as there has been no authoritative study on the
particular matter dealing with Filipinos.
Respecting the possible influence of media coverage on the
impartiality of trial court judges, petitioners correctly explain
that prejudicial publicity insofar as it undermines the right to a
fair trial must pass the totality of circumstances test, applied
in People v. Teehankee, Jr.[24] and Estrada v. Desierto,[25] that
the right of an accused to a fair trial is not incompatible to a
free press, that pervasive publicity is not per se prejudicial to
the right of an accused to a fair trial, and that there must be
allegation and proof of the impaired capacity of a judge to
render a bias-free decision. Mere fear of possible undue

influence is not tantamount to actual prejudice resulting in the

deprivation of the right to a fair trial.
Moreover, an aggrieved party has ample legal remedies. He
may challenge the validity of an adverse judgment arising from
a proceeding that transgressed a constitutional right. As pointed
out by petitioners, an aggrieved party may early on move for a
change of venue, for continuance until the prejudice from
publicity is abated, for disqualification of the judge, and for
closure of portions of the trial when necessary. The trial court
may likewise exercise its power of contempt and issue gag
One apparent circumstance that sets the Maguindanao
Massacre cases apart from the earlier cases is the impossibility
of accommodating even the parties to the cases the private
complainants/families of the victims and other witnesses inside
the courtroom. On public trial, Estrada basically discusses:
An accused has a right to a public trial but it is a
right that belongs to him, more than anyone else,
where his life or liberty can be held critically in
balance. A public trial aims to ensure that he is
fairly dealt with and would not be unjustly
condemned and that his rights are not
compromised in secrete conclaves of long ago. A
public trial is not synonymous with publicized
trial; it only implies that the court doors must be

open to those who wish to come, sit in the

available seats, conduct themselves with
decorum and observe the trial process. In the
constitutional sense, a courtroom should have
enough facilities for a reasonable number of the
public to observe the proceedings, not too small
as to render the openness negligible and not too
large as to distract the trial participants from
their proper functions, who shall then be totally
free to report what they have observed during the
proceedings.[26] (underscoring supplied)

Even before considering what is a reasonable number of the

public who may observe the proceedings, the peculiarity of the
subject criminal cases is that the proceedings already
necessarily entail the presence of hundreds of families. It
cannot be gainsaid that the families of the 57 victims and of the
197 accused have as much interest, beyond mere curiosity, to
attend or monitor the proceedings as those of the impleaded
parties or trial participants. It bears noting at this juncture that
the prosecution and the defense have listed more than 200
witnesses each.

The impossibility of holding such judicial proceedings in a

courtroom that will accommodate all the interested parties,
whether private complainants or accused, is unfortunate

enough. What more if the right itself commands that a

reasonable number of the general public be allowed to witness
courtroom. Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the
imperative of a transparent, open and public trial.
In so allowing pro hac vice the live broadcasting by radio and
television of the Maguindanao Massacre cases, the Court lays
down the following guidelines toward addressing the concerns
mentioned in Aquino and Estrada:
(a) An audio-visual recording of the
Maguindanao massacre cases may be made both
for documentary purposes and for transmittal to
live radio and television broadcasting.
(b) Media entities must file with the trial court a
letter of application, manifesting that they intend
to broadcast the audio-visual recording of the
proceedings and that they have the necessary
technological equipment and technical plan
to carry out the same, with an undertaking that
they will faithfully comply with the guidelines
and regulations and cover the entire remaining
proceedings until promulgation of judgment.
No selective or partial coverage shall be
allowed. No media entity shall be allowed to

broadcast the proceedings without an application

duly approved by the trial court.
(c) A single fixed compact camera shall be
installed inconspicuously inside the courtroom to
provide a single wide-angle full-view of the sala
of the trial court. No panning and zooming shall
be allowed to avoid unduly highlighting or
downplaying incidents in the proceedings. The
camera and the necessary equipment shall be
operated and controlled only by a duly
designated official or employee of the Supreme
Court. The camera equipment should not
produce or beam any distracting sound or light
rays. Signal lights or signs showing the
equipment is operating should not be visible. A
limited number of microphones and the least
installation of wiring, if not wireless technology,
must be unobtrusively located in places indicated
by the trial court.
The Public Information Office and the
Office of the Court Administrator shall
coordinate and assist the trial court on the
physical set-up of the camera and equipment.
(d) The transmittal of the audio-visual recording
from inside the courtroom to the media entities
shall be conducted in such a way that the least
physical disturbance shall be ensured in keeping
with the dignity and solemnity of the
proceedings and the exclusivity of the access to
the media entities.

The hardware for establishing an

interconnection or link with the camera
equipment monitoring the proceedings shall be
for the account of the media entities, which
should employ technology that can (i) avoid the
cumbersome snaking cables inside the
courtroom, (ii) minimize the unnecessary ingress
or egress of technicians, and (iii) preclude undue
commotion in case of technical glitches.
If the premises outside the courtroom
lack space for the set-up of the media entities
facilities, the media entities shall access the
audio-visual recording either via wireless
technology accessible even from outside the
court premises or from one common web
broadcasting platform from which streaming can
be accessed or derived to feed the images and
At all times, exclusive access by the
media entities to the real-time audio-visual
recording should be protected or encrypted.
(e) The broadcasting of the proceedings for a
particular day must be continuous and in its
entirety, excepting such portions thereof where
Sec. 21 of Rule 119 of the Rules of
Court[27] applies, and where the trial court
excludes, upon motion, prospective witnesses
from the courtroom, in instances where,inter
alia, there are unresolved identification issues or
there are issues which involve the security of the

witnesses and the integrity of their testimony

(e.g., the dovetailing of corroborative testimonies
is material, minority of the witness).
The trial court may, with the consent of
the parties, order only the pixelization of the
image of the witness or mute the audio output, or
(f) To provide a faithful and complete broadcast
of the proceedings, no commercial break or any
other gap shall be allowed until the days
proceedings are adjourned, except during the
period of recess called by the trial court and
during portions of the proceedings wherein the
public is ordered excluded.
(g) To avoid overriding or superimposing the
audio output from the on-going proceedings, the
proceedings shall be broadcast without any
voice-overs, except brief annotations of scenes
depicted therein as may be necessary to explain
them at the start or at the end of the scene. Any
commentary shall observe the sub judice rule and
be subject to the contempt power of the court;
(h) No repeat airing of the audio-visual recording
shall be allowed until after the finality of
judgment, except brief footages and still images
derived from or cartographic sketches of scenes
based on the recording, only for news purposes,
which shall likewise observe the sub judice rule

and be subject to the contempt power of the


resource persons and experts in the field of

information and communication technology.

(i) The original audio-recording shall be

deposited in the National Museum and the
Records Management and Archives Office for
preservation and exhibition in accordance with

(l) All other present directives in the conduct of

the proceedings of the trial court (i.e., prohibition
on recording devices such as still cameras, tape
recorders; and allowable number of media
practitioners inside the courtroom) shall be
observed in addition to these guidelines.

(j) The audio-visual recording of the proceedings

shall be made under the supervision and control
of the trial court which may issue supplementary
directives, as the exigency requires, including the
suspension or revocation of the grant of
application by the media entities.

(k) The Court shall create a special committee

which shall forthwith study, design and
implementing regulations, and administrative
matters referred to it by the Court concerning the
live broadcast of the proceedings pro hac vice, in
guidelines. The Special Committee shall also
report and recommend on the feasibility,
availability and affordability of the latest
technology that would meet the herein
requirements. It may conduct consultations with

Indeed, the Court cannot gloss over what advances technology

has to offer in distilling the abstract discussion of key
context.Technology per se has always been neutral. It is the use
and regulation thereof that need fine-tuning. Law and
technology can work to the advantage and furtherance of the
various rights herein involved, within the contours of defined
WHEREFORE, in light of the foregoing disquisition, the
for live broadcast by television and radio of the trial court
proceedings of the Maguindanao Massacre cases, subject to the
guidelines herein outlined.

interests were aroused by the gripping details of what

everybody referred to as the Vizconde massacre.


Brief Background
On June 30, 1991 Estrellita Vizconde and her
daughters Carmela, nineteen years old, and Jennifer,
seven, were brutally slain at their home
in Paraaque City.Following an intense investigation,
the police arrested a group of suspects, some of whom
gave detailed confessions. But the trial court smelled
a frame-up and eventually ordered them
discharged. Thus, the identities of the real perpetrators
remained a mystery especially to the public whose

Four years later in 1995, the National Bureau of

Investigation or NBI announced that it had solved the
crime. It presented star-witness Jessica M. Alfaro, one
of its informers, who claimed that she witnessed the
crime. She pointed to accused Hubert Jeffrey P. Webb,
Antonio Tony Boy Lejano, Artemio Dong Ventura,
Michael A. Gatchalian, Hospicio Pyke Fernandez,
Peter Estrada, Miguel Ging Rodriguez, and Joey Filart
as the culprits. She also tagged accused police officer,
Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro's testimony, on August 10, 1995
the public prosecutors filed an information for rape
with homicide against Webb, et al.[1]
The Regional Trial Court of Paraaque City,
Branch 274, presided over by Judge Amelita G.
Tolentino, tried only seven of the accused since
Artemio Ventura and Joey Filart remained at large.
The prosecution presented Alfaro as its main
witness with the others corroborating her
testimony. These included the medico-legal officer
who autopsied the bodies of the victims, the security
guards of Pitong Daan Subdivision, the former

laundrywoman of the Webbs household, police officer

Biongs former girlfriend, and Lauro G. Vizconde,
Estrellitas husband.
For their part, some of the accused testified,
denying any part in the crime and saying they were
elsewhere when it took place. Webbs alibi appeared
the strongest since he claimed that he was then across
the ocean in the United States of America. He
presented the testimonies of witnesses as well as
documentary and object evidence to prove this. In
addition, the defense presented witnesses to show
Alfaro's bad reputation for truth and the incredible
nature of her testimony.
But impressed by Alfaros detailed narration of
the crime and the events surrounding it, the trial court
found a credible witness in her. It noted her
categorical, straightforward, spontaneous, and frank
crossexaminations. The trial court remained unfazed by
significant discrepancies between Alfaros April 28
and May 22, 1995 affidavits, accepting her
explanation that she at first wanted to protect her
former boyfriend, accused Estrada, and a relative,
accused Gatchalian; that no lawyer assisted her; that

she did not trust the investigators who helped her

prepare her first affidavit; and that she felt unsure if
she would get the support and security she needed
once she disclosed all about the Vizconde killings.
In contrast, the trial court thought little of the
denials and alibis that Webb, Lejano, Rodriguez, and
Gatchalian set up for their defense. They paled,
according to the court, compared to Alfaros testimony
that other witnesses and the physical evidence
corroborated. Thus, on January 4, 2000, after four
years of arduous hearings, the trial court rendered
judgment, finding all the accused guilty as charged
and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez the penalty of
reclusion perpetua and on Biong, an indeterminate
prison term of eleven years, four months, and one day
to twelve years. The trial court also awarded damages
to Lauro Vizconde.[3]
On appeal, the Court of Appeals affirmed the
trial courts decision, modifying the penalty imposed
on Biong to six years minimum and twelve years
maximum and increasing the award of damages to
Lauro Vizconde.[4] The appellate court did not agree
that the accused were tried by publicity or that the

trial judge was biased. It found sufficient evidence of

conspiracy that rendered Rodriguez, Gatchalian,
Fernandez, and Estrada equally guilty with those who
had a part in raping and killing Carmela and in
executing her mother and sister.
On motion for reconsideration by the accused,
the Court of Appeals' Special Division of five
members voted three against two to deny the motion,
hence, the present appeal.
On April 20, 2010, as a result of its initial
deliberation in this case, the Court issued a Resolution
granting the request of Webb to submit for DNA
analysis the semen specimen taken from Carmelas
cadaver, which specimen was then believed still under
the safekeeping of the NBI. The Court granted the
request pursuant to section 4 of the Rule on DNA
Evidence[6] to give the accused and the prosecution
access to scientific evidence that they might want to
avail themselves of, leading to a correct decision in
the case.
Unfortunately, on April 27, 2010 the NBI
informed the Court that it no longer has custody of the
specimen, the same having been turned over to the

trial court.The trial record shows, however, that the

specimen was not among the object evidence that the
prosecution offered in evidence in the case.
This outcome prompted accused Webb to file
an urgent motion to acquit on the ground that the
governments failure to preserve such vital evidence
has resulted in the denial of his right to due process.
Issues Presented
Accused Webbs motion to acquit presents a
threshold issue: whether or not the Court should
acquit him outright, given the governments failure to
produce the semen specimen that the NBI found on
Carmelas cadaver, thus depriving him of evidence that
would prove his innocence.
In the main, all the accused raise the central
issue of whether or not Webb, acting in conspiracy
with Lejano, Gatchalian, Fernandez, Estrada,
Rodriguez, Ventura, and Filart, raped and killed
Carmela and put to death her mother and sister. But,
ultimately, the controlling issues are:

1. Whether or not Alfaros testimony as

eyewitness, describing the crime and identifying
Webb, Lejano, Gatchalian, Fernandez, Estrada,
Rodriguez, and two others as the persons who
committed it, is entitled to belief; and
2. Whether or not Webb presented sufficient
evidence to prove his alibi and rebut Alfaros
testimony that he led the others in committing the
The issue respecting accused Biong is whether
or not he acted to cover up the crime after its
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland,[7] that
he is entitled to outright acquittal on the ground of
violation of his right to due process given the States
failure to produce on order of the Court either by
negligence or willful suppression the semen specimen
taken from Carmela.

The medical evidence clearly established that

Carmela was raped and, consistent with this, semen
specimen was found in her. It is true that Alfaro
identified Webb in her testimony as Carmelas rapist
and killer but serious questions had been raised about
her credibility. At the very least, there exists a
possibility that Alfaro had lied. On the other hand, the
semen specimen taken from Carmela cannot possibly
lie. It cannot be coached or allured by a promise of
reward or financial support.No two persons have the
same DNA fingerprint, with the exception of identical
twins.[8] If, on examination, the DNA of the subject
specimen does not belong to Webb, then he did not
rape Carmela. It is that simple. Thus, the Court would
have been able to determine that Alfaro committed
perjury in saying that he did.
Still, Webb is not entitled to acquittal for the
failure of the State to produce the semen specimen at
this late stage. For one thing, the ruling in Brady v.
Maryland[9] that he cites has long be overtaken by the
decision in Arizona v. Youngblood,[10] where the U.S.
Supreme Court held that due process does not require
the State to preserve the semen specimen although it
might be useful to the accused unless the latter is able
to show bad faith on the part of the prosecution or the

police. Here, the State presented a medical expert who

testified on the existence of the specimen and Webb in
fact sought to have the same subjected to DNA test.
For, another, when Webb raised the DNA issue,
the rule governing DNA evidence did not yet exist,
the country did not yet have the technology for
conducting the test, and no Philippine precedent had
evidence. Consequently, the idea of keeping the
specimen secure even after the trial court rejected the
motion for DNA testing did not come up. Indeed,
neither Webb nor his co-accused brought up the
matter of preserving the specimen in the meantime.
Parenthetically, after the trial court denied
Webbs application for DNA testing, he allowed the
proceeding to move on when he had on at least two
occasions gone up to the Court of Appeals or the
Supreme Court to challenge alleged arbitrary actions
taken against him and the other accused.[11] They
raised the DNA issue before the Court of Appeals but
merely as an error committed by the trial court in
rendering its decision in the case. None of the accused
filed a motion with the appeals court to have the DNA
test done pending adjudication of their appeal. This,

even when the Supreme Court had in the meantime

passed the rules allowing such test. Considering the
accuseds lack of interest in having such test done, the
State cannot be deemed put on reasonable notice that
it would be required to produce the semen specimen at
some future time.
Now, to the merit of the case.
Alfaros Story
Based on the prosecutions version, culled from
the decisions of the trial court and the Court of
Appeals, on June 29, 1991 at around 8:30 in the
evening, Jessica Alfaro drove her Mitsubishi Lancer,
with boyfriend Peter Estrada as passenger, to
the Ayala Alabang Commercial Center parking lot to
buy shabu from
Dong Ventura. There, Ventura introduced her to his
friends: Hubert Jeffrey P. Webb, Antonio Tony Boy
Lejano, Miguel Ging Rodriguez, Hospicio Pyke
Filart. Alfaro recalled frequently seeing them at
a shabu house in Paraaque in January 1991,
except Ventura whom she had known earlier in
December 1990.

As Alfaro smoked her shabu, Webb approached

and requested her to relay a message for him to a girl,
Vizconde. Alfaro agreed. After using up their shabu,
the group drove to Carmelas house at 80 Vinzons
Homes, Paraaque City. Riding in her car, Alfaro and
Estrada trailed Filart and Rodriguez who rode a
Mazda pick-up and Webb, Lejano, Ventura,
Fernandez, and Gatchalian who were on a Nissan
Patrol car.
On reaching their destination, Alfaro parked her
car on Vinzons Street, alighted, and approached
Carmelas house. Alfaro pressed the buzzer and a
woman came out. Alfaro queried her about
Carmela. Alfaro had met Carmela twice before in
January 1991. When Carmela came out, Alfaro gave
her Webbs message that he was just around. Carmela
replied, however, that she could not go out yet since
she had just arrived home. She told Alfaro to return
after twenty minutes. Alfaro relayed this to Webb who
then told the group to drive back to
the Ayala Alabang Commercial Center.

The group had another shabu session at the

parking lot. After sometime, they drove back but only
Alfaro proceeded to Vinzons Street where Carmela
lived. The Nissan Patrol and the Mazda pick-up, with
their passengers, parked somewhere along Aguirre
Avenue. Carmela was at their garden. She approached
Alfaro on seeing her and told the latter that she
(Carmela) had to leave the house for a while. Carmela
requested Alfaro to return before midnight and she
would leave the pedestrian gate, the iron grills that led
unlocked. Carmela also told Alfaro to blink her cars
headlights twice when she approached the pedestrian
gate so Carmela would know that she had arrived.
Alfaro returned to her car but waited for
Carmela to drive out of the house in her own
car. Alfaro
to Aguirre
Avenue where she dropped off a man whom Alfaro
believed was Carmelas boyfriend. Alfaro looked for
her group, found them, and relayed Carmelas
instructions to Webb. They then all went back to
the Ayala Alabang Commercial Center. At the parking
lot, Alfaro told the group about her talk with
Carmela. When she told Webb of Carmelas male

companion, Webbs mood changed for the rest of the

evening (bad trip).
Webb gave out free cocaine. They all used it
and some shabu, too. After about 40 to 45 minutes,
Webb decided that it was time for them to leave. He
said,Pipilahan natin siya [Carmela] at ako ang
mauuna. Lejano said, Ako ang susunod and the others
responded Okay, okay. They all left the parking lot in
a convoy of three vehicles and drove into Pitong Daan
Subdivision for the third time. They arrived at
Carmelas house shortly before midnight.
Alfaro parked her car between Vizcondes house
and the next. While waiting for the others to alight
from their cars, Fernandez approached Alfaro with a
suggestion that they blow up the transformer near the
Vizcondes residence to cause a brownout (Pasabugin
kaya natin ang transformer na ito). But Alfaro
shrugged off the idea, telling Fernandez, Malakas
lang ang tama mo. When Webb, Lejano,
and Ventura were already before the house, Webb told
the others again that they would line up for Carmela
but he would be the first. The others replied, O sige,
dito lang kami, magbabantay lang kami.

Alfaro was the first to pass through the

pedestrian gate that had been left open. Webb, Lejano,
and Ventura followed
her. On
garage, Ventura using a chair mounted the hood of the
Vizcondes Nissan Sentra and loosened the electric
bulb over it (para daw walang ilaw). The small group
went through the open iron grill gate and passed the
dirty kitchen. Carmela opened the aluminum screen
door of the kitchen for them. She and Webb looked
each other in the eyes for a moment and, together,
headed for the dining area.
As she lost sight of Carmela and Webb, Alfaro
decided to go out. Lejano asked her where she was
going and she replied that she was going out to
smoke. As she eased her way out through the kitchen
door, she saw Ventura pulling out a kitchen
drawer. Alfaro smoked a cigarette at the garden. After
about twenty minutes, she was surprised to hear a
womans voice ask, Sino yan? Alfaro immediately
walked out of the garden to her car. She found her
other companions milling around it.Estrada who sat in
the car asked her, Okay ba?
After sitting in the car for about ten minutes,
Alfaro returned to the Vizconde house, using the same

route. The interior of the house was dark but some

light filtered in from outside. In the kitchen, Alfaro
saw Ventura searching a ladys bag that lay on the
dining table. When she asked him what he was
looking for, he said:Ikaw na nga dito, maghanap ka
ng susi. She asked him what key he wanted and he
replied: Basta maghanap ka ng susi ng main door pati
na rin ng susi ng kotse.When she found a bunch of
keys in the bag, she tried them on the main door but
none fitted the lock. She also did not find the car key.

Webb gave Alfaro a meaningful look and she

immediately left the room. She met Ventura at the
dining area. He told her, Prepare an escape. Aalis na
tayo.Shocked with what she saw, Alfaro rushed out of
the house to the others who were either sitting in her
car or milling on the sidewalk. She entered her car and
turned on the engine but she did not know where to
go. Webb, Lejano, and Ventura came out of the house
just then. Webb suddenly picked up a stone and threw
it at the main door, breaking its glass frame.

Unable to open the main door, Alfaro returned

to the kitchen. While she was at a spot leading to the
dining area, she heard a static noise (like a television
that remained on after the station had signed off). Out
of curiosity, she approached the masters bedroom
from where the noise came, opened the door a little,
and peeked inside. The unusual sound grew even
louder. As she walked in, she saw Webb on top of
Carmela while she lay with her back on the floor. Two
bloodied bodies lay on the bed. Lejano was at the foot
of the bed about to wear his jacket. Carmela was
gagged, moaning, and in tears while Webb raped her,
his bare buttocks exposed.

As the three men approached the pedestrian

gate, Webb told Ventura that he forgot his jacket in the
house. But Ventura told him that they could not get in
anymore as the iron grills had already locked. They all
rode in their cars and drove away until they
reached Aguirre Avenue. As they got near an old hotel
at theTropical Palace area, Alfaro noticed the Nissan
Patrol slow down. Someone threw something out of
the car into the cogonal area.
The convoy of cars went to a large house with
high walls, concrete fence, steel gate, and a long
driveway at BF Executive Village. They entered the
compound and gathered at the lawn where the
blaming session took place. It was here that Alfaro

and those who remained outside the Vizconde house

learned of what happened.The first to be killed was
Carmelas mother, then Jennifer, and finally,
Carmella. Ventura blamed Webb, telling him, Bakit
naman pati yung bata? Webb replied that the girl
woke up and on seeing him molesting Carmela, she
jumped on him, bit his shoulders, and pulled his
hair. Webb got mad, grabbed the girl, pushed her to
the wall, and repeatedly stabbed her. Lejano excused
himself at this point to use the telephone in the
house. Meanwhile, Webb called up someone on his
cellular phone.
At around 2:00 in the morning, accused
Gerardo Biong arrived. Webb ordered him to go and
clean up the Vizconde house and said to him, Pera
lang ang katapat nyan. Biong answered, Okay
lang. Webb spoke to his companions and told them,
We dont know each other. We havent seen each
otherbaka maulit yan.Alfaro and Estrada left and they
drove to her fathers house.[12]
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who
showed up at the NBI after four years, bothered by her

conscience or egged on by relatives or friends to come

forward and do what was right? No. She was, at the
time she revealed her story, working for the NBI as an
asset, a stool pigeon, one who earned her living by
fraternizing with criminals so she could squeal on
them to her NBI handlers. She had to live a life of lies
to get rewards that would pay for her subsistence and
According to Atty. Artemio Sacaguing, former
head of the NBI Anti-Kidnapping, Hijacking, and
Armed Robbery Task Force (AKHAR) Section,
Alfaro had been hanging around at the NBI since
November or December 1994 as an asset. She
supplied her handlers with information against drug
pushers and other criminal elements. Some of this
information led to the capture of notorious drug
pushers like Christopher Cruz Santos and Orlando
Bacquir. Alfaros tip led to the arrest of the leader of
the Martilyo gang that killed a police officer. Because
of her talent, the task force gave her very special
treatment and she became its darling, allowed the
privilege of spending nights in one of the rooms at the
NBI offices.

When Alfaro seemed unproductive for

sometime, however, they teased her about it and she
was piqued. One day, she unexpectedly told
Sacaguing that she knew someone who had the real
story behind the Vizconde massacre. Sacaguing
showed interest. Alfaro promised to bring that
someone to the NBI to tell his story.When this did not
happen and Sacaguing continued to press her, she told
him that she might as well assume the role of her
informant. Sacaguing testified thus:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder
case? Will you tell the Honorable Court?
A. She told me. Your Honor, that she knew somebody who related to her the
circumstances, I mean, the details of the massacre of the Vizconde
family. Thats what she told me, Your Honor.
Q. And what did you say?

A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong
How was that?
A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan.
Q. All right, and what was your reaction when Ms. Alfaro stated that papapelan ko
na lang yan?

A. I said, hindi puwede yan, kasi hindi ka naman eye witness.
Q. And what was the reply of Ms. Alfaro?
A. Hindi siya nakakibo, until she went away.
(TSN, May 28, 1996, pp. 49-50, 58, 77-79)

Quite significantly, Alfaro never refuted Sacaguings

above testimony.

A. I was quite interested and I tried to persuade her to introduce to me that man
and she promised that in due time, she will bring to me the man, and
together with her, we will try to convince him to act as a state witness
and help us in the solution of the case.
Q. Atty. Sacaguing, were you able to interview this alleged witness?
A. No, sir.
Q. Why not?
A. Because Jessica Alfaro was never able to comply with her promise to bring the
man to me. She told me later that she could not and the man does not
like to testify.
Q. All right, and what happened after that?

2. The suspicious details

But was it possible for Alfaro to lie with such
abundant details some of which even tallied with the
physical evidence at the scene of the crime? No doubt,
Firstly, the Vizconde massacre had been

details. Everybody was talking about what the police

found at the crime scene and there were lots of
speculations about them.
Secondly, the police had arrested some akyatbahay group in Paraaque and charged them with the
crime. The police prepared the confessions of the men
they apprehended and filled these up with details that
the evidence of the crime scene provided. Alfaros NBI
handlers who were doing their own investigation
knew of these details as well. Since Alfaro hanged out
at the NBI offices and practically lived there, it was
not too difficult for her to hear of these evidentiary
details and gain access to the documents.
Not surprisingly, the confessions of some
members of the Barroso akyat bahay gang,
condemned by the Makati RTC as fabricated by the
police to pin the crime on them, shows how crime
investigators could make a confession ring true by
matching some of its details with the physical
evidence at the crime scene. Consider the following:
a. The Barroso gang members said that they got
into Carmelas house by breaking the glass panel of
the front door using a stone wrapped in cloth to

deaden the noise. Alfaro could not use this line since
the core of her story was that Webb was Carmelas
boyfriend. Webb had no reason to smash her front
door to get to see her.
Consequently, to explain the smashed door,
Alfaro had to settle for claiming that, on the way out
of the house, Webb picked up some stone and, out of
the blue, hurled it at the glass-paneled front door of
the Vizconde residence. His action really made no
sense. From Alfaros narration, Webb appeared rational
in his decisions.It was past midnight, the house was
dark, and they wanted to get away quickly to avoid
detection. Hurling a stone at that glass door and
causing a tremendous noise was bizarre, like inviting
the neighbors to come.
b. The crime scene showed that the house had
been ransacked. The rejected confessions of the
Barroso akyat-bahay gang members said that they
tried to rob the house. To explain this physical
point Ventura was pulling a kitchen drawer, and at
another point, going through a handbag on the dining
table. He said he was looking for the front-door key
and the car key.

Again, this portion of Alfaros story appears

tortured to accommodate the physical evidence of the
house. She
mentioned Ventura having taken some valuables with
him when they left Carmelas house. And why
would Ventura rummage a bag on the table for the
front-door key, spilling the contents, when they had
already gotten into the house. It is a story made to fit
in with the crime scene although robbery was
supposedly not the reason Webb and his companions
entered that house.
c. It is the same thing with the garage light. The
police investigators found that the bulb had been
loosened to turn off the light. The confessions of the
Barroso gang claimed that one of them climbed the
parked cars hood to reach up and darken that
light. This made sense since they were going to rob
the place and they needed time to work in the dark
trying to open the front door. Some passersby might
look in and see what they were doing.
Alfaro had to adjust her testimony to take into
account that darkened garage light. So she claimed
that Ventura climbed the cars hood, using a chair, to

turn the light off. But, unlike the Barroso akyat-bahay

gang, Webb and his friends did not have anything to
do in a darkened garage. They supposedly knew in
advance that Carmela left the doors to the kitchen
open for them. It did not make sense for Ventura to
risk standing on the cars hood and be seen in such an
awkward position instead of going straight into the
And, thirdly, Alfaro was the NBIs star witness,
their badge of excellent investigative work. After
claiming that they had solved the crime of the decade,
the NBI people had a stake in making her sound
credible and, obviously, they gave her all the
preparations she needed for the job of becoming a
fairly good substitute witness.She was their darling of
an asset. And this is not pure speculation. As pointed
out above, Sacaguing of the NBI, a lawyer and a
ranking official, confirmed this to be a cold fact. Why
the trial court and the Court of Appeals failed to see
this is mystifying.
At any rate, did Alfaro at least have a fine
memory for faces that had a strong effect on her,
given the circumstances? Not likely. She named
Miguel Ging Rodriguez as one of the culprits in the
Vizconde killings. But when the NBI found a certain

Michael Rodriguez, a drug dependent from the

Bicutan Rehabilitation Center, initially suspected to
be Alfaros Miguel Rodriguez and showed him to
Alfaro at the NBI office, she ran berserk, slapping and
kicking Michael, exclaiming: How can I forget your
face. We just saw each other in a disco one month ago
and you told me then that you will kill me. As it
turned out, he was not Miguel Rodriguez, the accused
in this case.[13]
Two possibilities exist: Michael was really the
one Alfaro wanted to implicate to settle some score
with him but it was too late to change the name she
already gave or she had myopic vision, tagging the
wrong people for what they did not do.
3. The quality of the testimony
There is another thing about a lying witness:
her story lacks sense or suffers from inherent
inconsistencies. An understanding of the nature of
things and the common behavior of people will help
expose a lie. And it has an abundant presence in this

One. In her desire to implicate Gatchalian,

Fernandez, Estrada, Rodriguez, and Filart, who were
supposed to be Webbs co-principals in the crime,
Alfaro made it a point to testify that Webb proposed
twice to his friends the gang-rape of Carmela who had
hurt him. And twice, they (including, if one believes
Alfaro, her own boyfriend Estrada) agreed in a chorus
to his proposal. But when they got to Carmelas house,
only Webb, Lejano, Ventura, and Alfaro entered the
Gatchalian, Fernandez, Estrada, and Rodriguez
supposedly stayed around Alfaros car, which was
parked on the street between Carmelas house and the
next.Some of these men sat on top of the cars lid
while others milled on the sidewalk, visible under the
street light to anyone who cared to watch them,
particularly to the people who were having a drinking
party in a nearby house. Obviously, the behavior of
Webbs companions out on the street did not figure in
a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced
her for the first time in her life to Webb and his
friends in a parking lot by a mall. So why would she
agree to act as Webbs messenger, using her gas, to
bring his message to Carmela at her home. More

inexplicably, what motivated Alfaro to stick it out the

whole night with Webb and his friends?

freak out and decide to come with his friends and

harm Carmela.

They were practically strangers to her and her

boyfriend Estrada. When it came to a point that Webb
decided with his friends to gang-rape Carmela,
clearly, there was nothing in it for Alfaro. Yet, she
stuck it out with them, as a police asset would,
hanging in there until she had a crime to report, only
she was not yet an asset then. If, on the other hand,
Alfaro had been too soaked in drugs to think clearly
and just followed along where the group took her,
how could she remember so much details that only a
drug-free mind can?

Four. According to Alfaro, when they returned

to Carmelas house the third time around midnight, she
led Webb, Lejano, and Ventura through the pedestrian
gate that Carmela had left open. Now, this is
weird. Webb was the gang leader who decided what
they were going to do. He decided and his friends
agreed with him to go to Carmelas house and gangrape her. Why would Alfaro, a woman, a stranger to
Webb before that night, and obviously with no role to
play in the gang-rape of Carmela, lead him and the
others into her house? It made no sense. It would only
make sense if Alfaro wanted to feign being a witness
to something she did not see.

Three. When Alfaro went to see Carmela at her

house for the second time, Carmella told her that she
still had to go out and that Webb and his friends
should come back around midnight. Alfaro returned to
her car and waited for Carmela to drive out in her own
car. And she trailed her up to Aguirre Avenue where
she supposedly dropped off a man whom she thought
was Carmelas boyfriend. Alfaros trailing Carmela to
spy on her unfaithfulness to Webb did not make sense
since she was on limited errand. But, as a critical
witness, Alfaro had to provide a reason for Webb to

Five. Alfaro went out of the house to smoke at

the garden. After about twenty minutes, a woman
exclaimed, Sino yan? On hearing this, Alfaro
immediately walked out of the garden and went to her
car. Apparently, she did this because she knew they
came on a sly. Someone other than Carmela became
conscious of the presence of Webb and others in the
house. Alfaro walked away because, obviously, she
did not want to get involved in a potential

confrontation. This was supposedly her frame of

mind: fear of getting involved in what was not her

shocked to know where to go! This emotional

pendulum swing indicates a witness who was
confused with her own lies.

But if that were the case, how could she testify

based on personal knowledge of what went on in the
house? Alfaro had to change that frame of mind to
one of boldness and reckless curiosity. So that is what
she next claimed. She went back into the house to
watch as Webb raped Carmela on the floor of the
masters bedroom.He had apparently stabbed to death
Carmelas mom and her young sister whose bloodied
bodies were sprawled on the bed. Now, Alfaro
testified that she got scared (another shift to fear) for
she hurriedly got out of the house after Webb
supposedly gave her a meaningful look.

4. The supposed corroborations

Alfaro quickly went to her car, not minding

Gatchalian, Fernandez, Estrada, Rodriguez, and Filart
who sat on the car or milled on the sidewalk. She did
not speak to them, even to Estrada, her boyfriend. She
entered her car and turned on the engine but she
testified that she did not know where to go. This
woman who a few minutes back led Webb, Lejano,
and Ventura into the house, knowing that they were
decided to rape and harm Carmela, was suddenly too

Intending to provide corroboration to Alfaros

testimony, the prosecution presented six additional
Dr. Prospero A. Cabanayan, the NBI MedicoLegal Officer who autopsied the bodies of the victims,
testified on the stab wounds they sustained[14] and the
presence of semen in Carmelas genitalia, [15] indicating
that she had been raped.
Normal E. White, Jr., was the security guard
on duty at Pitong Daan Subdivision from 7 p.m. of
June 29 to 7 a.m. of June 30, 1991. He got a report on
the morning of June 30 that something untoward
happened at the Vizconde residence. He went there
and saw the dead bodies in the masters bedroom, the
bag on the dining table, as well as the loud noise
emanating from a television set.[16]
White claimed that he noticed Gatchalian and
his companions, none of whom he could identify, go

in and out of Pitong Daan Subdivision. He also saw

them along Vinzons Street. Later, they entered Pitong
Daan Subdivision in a three-car convoy. White could
not, however, describe the kind of vehicles they used
or recall the time when he saw the group in those two
instances. And he did not notice anything suspicious
about their coming and going.
But Whites testimony cannot be relied on. His
initial claim turned out to be inaccurate. He actually
saw Gatchalian and his group enter the Pitong Daan
Subdivision only once. They were not going in and
out. Furthermore, Alfaro testified that when the
convoy of cars went back the second time in the
direction of Carmelas house, she alone entered the
subdivision and passed the guardhouse without
stopping. Yet, White who supposedly manned that
guardhouse did not notice her.
Surprisingly, White failed to note Biong, a
police officer, entering or exiting the subdivision on
the early morning of June 30 when he supposedly
cleaned up Vizconde residence on Webbs
orders. What is more, White did not notice Carmela
arrive with her mom before Alfaros first visit that
night. Carmela supposedly left with a male
companion in her car at around 10:30 p.m. but White

did not notice it. He also did not notice Carmela

reenter the subdivision. White actually discredited
Alfaros testimony about the movements of the
persons involved.
Further, while Alfaro testified that it was the
Mazda pick-up driven by Filart that led the threevehicle convoy,[17] White claimed it was the Nissan
Patrol with Gatchalian on it that led the convoy since
he would not have let the convoy in without
ascertaining that Gatchalian, a resident, was in
it. Security guard White did not, therefore, provide

Justo Cabanacan, the security supervisor at

Pitong Daan Subdivision testified that he saw Webb
around the last week of May or the first week of June
1991 to prove his presence in the Philippines when he
claimed to be in the United States. He was manning
the guard house at the entrance of the subdivision of
Pitong Daan when he flagged down a car driven by
Webb. Webb said that he would see Lilet
Sy. Cabanacan asked him for an ID but he pointed to
his United BF Homes sticker and said that he resided

there. Cabanacan replied, however, that Pitong Daan

had a local sticker.
Cabanacan testified that, at this point, Webb
introduced himself as the son of Congressman
Webb. Still, the supervisor insisted on seeing his
ID. Webb grudgingly gave it and after seeing the
picture and the name on it, Cabanacan returned the
same and allowed Webb to pass without being logged
in as their Standard Operating Procedure required.[18]
But Cabanacan's testimony could not be relied
on. Although it was not common for a security guard
to challenge a Congressmans son with such
vehemence, Cabanacan did not log the incident on the
guardhouse book. Nor did he, contrary to prescribed
procedure, record the visitors entry into the
subdivision. It did not make sense that Cabanacan was
strict in the matter of seeing Webbs ID but not in
recording the visit.
Mila Gaviola used to work as laundry woman
BF Homes Executive Village. She testified that she
saw Webb at his parents house on the morning of June
30, 1991 when she got the dirty clothes from the room

that he and two brothers occupied at about 4.a.m. She

saw him again pacing the floor at 9 a.m. At about 1
p.m., Webb left the house in t-shirt and shorts, passing
through a secret door near the maids quarters on the
way out. Finally, she saw Webb at 4 p.m. of the same
On cross-examination, however, Gaviola could
not say what distinguished June 30, 1991 from the
other days she was on service at the Webb household
as to enable her to distinctly remember, four years
later, what one of the Webb boys did and at what
time. She could not remember any of the details that
happened in the household on the other days. She
proved to have a selective photographic memory and
this only damaged her testimony.
Gaviola tried to corroborate Alfaro's testimony
by claiming that on June 30, 1991 she noticed
bloodstains on Webb's t-shirt.[20] She did not call the
attention of anybody in the household about it when it
would have been a point of concern that Webb may
have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs'
housemaid from March 1989 to May 1992, and Sgt.

Miguel Muoz, the Webbs' security aide in 1991,

testified that Gaviola worked for the Webbs only from
January 1991 to April 1991. Ventoso further testified
that it was not Gaviola's duty to collect the clothes
from the 2nd floor bedrooms, this being the work of
the housemaid charged with cleaning the rooms.
What is more, it was most unlikely for a
laundrywoman who had been there for only four
months to collect, as she claimed, the laundry from
the rooms of her employers and their grown up
children at four in the morning while they were
And it did not make sense, if Alfaros testimony
were to be believed that Webb, who was so careful
and clever that he called Biong to go to the Vizconde
residence at 2 a.m. to clean up the evidence against
him and his group, would bring his bloodied shirt
home and put it in the hamper for laundrywoman
Gaviola to collect and wash at 4 a.m. as was her
supposed habit.
Lolita De Birrer was accused Biongs girlfriend
around the time the Vizconde massacre took
place. Birrer testified that she was with Biong playing
mahjong from the evening of June 29, 1991 to the

early morning of June 30, when Biong got a call at

around 2 a.m. This prompted him, according to De
Birrer, to leave and go to BF. Someone sitting at the
backseat of a taxi picked him up. When Biong
returned at 7 a.m. he washed off what looked like
dried blood from his fingernails. And he threw away a
foul-smelling handkerchief. She also saw Biong take
out a knife with aluminum cover from his drawer and
hid it in his steel cabinet.[21]
The security guard at Pitong Daan did not
notice any police investigator flashing a badge to get
into the village although Biong supposedly came in at
the unholy hour of two in the morning. His departure
before 7 a.m. also remained unnoticed by the
subdivision guards. Besides, if he had cleaned up the
crime scene shortly after midnight, what was the point
of his returning there on the following morning to
dispose of some of the evidence in the presence of
other police investigators and on-lookers? In fact, why
would he steal valuable items from the Vizconde
residence on his return there hours later if he had the
opportunity to do it earlier?
At most, Birrers testimony only established
Biongs theft of certain items from the Vizconde
residence and gross neglect for failing to maintain the

sanctity of the crime scene by moving around and

altering the effects of the crime. Birrers testimony
failed to connect Biong's acts to Webb and the other
Lauro Vizconde testified about how deeply he
was affected by the loss of her wife and two
daughters. Carmella spoke to him of a rejected suitor
she called Bagyo, because he was a Paraaque
politicians son. Unfortunately, Lauro did not appear
curious enough to insist on finding out who the
rejected fellow was. Besides, his testimony
contradicts that of Alfaro who testified that Carmela
and Webb had an on-going relation. Indeed, if Alfaro
were to be believed, Carmela wanted Webb to come to
her house around midnight. She even left the kitchen
door open so he could enter the house.
5. The missing corroboration
There is something truly remarkable about this
case: the prosecutions core theory that Carmela and
Webb had been sweethearts, that she had been
unfaithful to him, and that it was for this reason that
Webb brought his friends to her house to gang-rape
her is totally uncorroborated!

For instance, normally, if Webb, a

Congressmans son, courted the young Carmela, that
would be news among her circle of friends if not
around town. But, here, none of her friends or even
those who knew either of them came forward to
affirm this. And if Webb hanged around with her,
trying to win her favors, he would surely be seen with
her. And this would all the more be so if they had
become sweethearts, a relation that Alfaro tried to
project with her testimony.
But, except for Alfaro, the NBI asset, no one
among Carmelas friends or her friends friends would
testify ever hearing of such relationship or ever seeing
them together in some popular hangouts in Paraaque
or Makati. Alfaros claim of a five-hour drama is like
an alien page, rudely and unconnectedly inserted into
Webb and Carmelas life stories or like a piece of
jigsaw puzzle trimmed to fit into the shape on the
board but does not belong because it clashes with the
surrounding pieces. It has neither antecedent nor
concomitant support in the verifiable facts of their
personal histories. It is quite unreal.

What is more, Alfaro testified that she saw

Carmela drive out of her house with a male passenger,
Mr. X, whom Alfaro thought the way it looked was
also Carmelas lover. This was the all-important reason
Webb supposedly had for wanting to harm her. Again,
none of Carmelas relatives, friends, or people who
knew her ever testified about the existence of Mr.X in
her life. Nobody has come forward to testify having
ever seen him with Carmela. And despite the
gruesome news about her death and how Mr. X had
played a role in it, he never presented himself like
anyone who had lost a special friend normally
would. Obviously, Mr. X did not exist, a mere ghost
of the imagination of Alfaro, the woman who made a
living informing on criminals.

Webbs U.S. Alibi

to the United States (U.S.) to learn the value of

independence, hard work, and money.[22] Gloria Webb,
his aunt, accompanied him. Rajah Tours booked their
flight to San Francisco via United Airlines. Josefina
Nolasco of Rajah Tours confirmed that Webb and his
aunt used their plane tickets.
Webb told his friends, including his neighbor,
Jennifer Claire Cabrera, and his basketball buddy,
Joselito Orendain Escobar, of his travel plans. He
even invited them to his despedida party on March 8,
1991 at Faces Disco along Makati Ave.[23] On March
8,1991, the eve of his departure, he took girlfriend
Milagros Castillo to a dinner at Bunchums at
the Makati Cinema Square. His basketball buddy
Rafael Jose with Tina Calma, a blind date arranged by
Webb, joined them. They afterwards went to Faces
Disco for Webb's despedida party. Among those
present were his friends Paulo Santos and Jay Ortega.

Among the accused, Webb presented the

strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator
Freddie Webb and his wife, Elizabeth, sent their son

b. The two immigration checks

The following day, March 9, 1991, Webb left
for San Francisco, California, with his Aunt Gloria on
board United Airlines Flight 808.[25] Before boarding
his plane, Webb passed through the Philippine

Immigration booth at the airport to have his passport

cleared and stamped. Immigration Officer, Ferdinand
Sampol checked Webbs visa, stamped, and initialed
his passport, and let him pass through. [26] He was
listed on the United Airlines Flights Passenger
On arrival at San Francisco, Webb went through
the U.S. Immigration where his entry into that country
recorded. Thus,
Naturalization Service, checking with its Nonimmigrant Information System, confirmed Webb's
entry into the U.S. on March 9, 1991. Webb presented
at the trial the INS Certification issued by the U.S.
Immigration and Naturalization Service,[28] the
computer-generated print-out of the US-INS
indicating Webb's entry on March 9, 1991,[29] and the
US-INS Certification dated August 31, 1995,
authenticated by the Philippine Department of Foreign
Affairs, correcting an earlier August 10, 1995
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria
were met by the latters daughter, Maria Teresa

Keame, who brought them to Glorias house in Daly

City, California.During his stay with his aunt, Webb
met Christopher Paul Legaspi Esguerra, Glorias
grandson. In April 1991, Webb, Christopher, and a
certain Daphne Domingo watched the concert of
Deelite Band in San Francisco.[31] In the same month,
Dorothy Wheelock and her family invited Webb to
Lake Tahoe to return the Webbs hospitality when she
was in the Philippines.[32]
In May 1991, on invitation of another aunt,
Susan Brottman, Webb moved to Anaheim
Hills, California.[33] During his stay there, he occupied
himself with playing basketball once or twice a week
with Steven Keeler[34] and working at his cousin-inlaws pest control company.[35] Webb presented the
companys logbook showing the tasks he performed,
his paycheck,[37] his ID, and other employment
papers. On June 14, 1991 he applied for a driver's
license[38] and wrote three letters to his friend Jennifer
On June 28, 1991, Webbs parents visited him
at Anaheim and stayed with the Brottmans. On the
same day, his father introduced Honesto Aragon to his
son when he came to visit.[40] On the following day,

June 29, Webb, in the company of his father and

Aragon went to Riverside, California, to look for a
car. They bought an MR2 Toyota car.[41] Later that day,
a visitor at the Brottmans, Louis Whittacker, saw
Webb looking at the plates of his new car.[42] To prove
the purchase, Webb presented the Public Records of
California Department of Motor Vehicle[43] and a car
plate LEW WEBB.[44] In using the car in the U.S.,
Webb even received traffic citations.[45]
On June 30, 1991 Webb, again accompanied by
his father and Aragon,[46] bought a bicycle
at Orange Cycle Center.[47] The Center issued Webb a
receipt dated June 30, 1991.[48] On July 4, 1991,
Independence Day, the Webbs, the Brottmans, and the
Vaca family had a lakeside picnic.[49]
Webb stayed with the Brottmans until mid July
and rented a place for less than a month. On August 4,
1991 he left for Longwood, Florida, to stay with the
spouses Jack and Sonja Rodriguez.[50] There, he met
Armando Rodriguez with whom he spent time,
playing basketball on weekends, watching movies,
and playing billiards.[51] In November 1991, Webb met
performing artist Gary Valenciano, a friend of Jack
Rodriguez, who was invited for a dinner at the

Rodriguezs house.[52]He left the Rodriguezs home in

August 1992, returned to Anaheim and stayed with
his aunt Imelda Pagaspas. He stayed there until he left
for the Philippines on October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also
went through both the U.S. and Philippine
immigrations on his return trip. Thus, his departure
from the U.S. was confirmed by the same
certifications that confirmed his entry.[53] Furthermore,
a Diplomatic Note of the U.S. Department of State
with enclosed letter from Acting Director Debora A.
Farmer of the Records Operations, Office of Records
of the US-INS stated that the Certification dated
August 31, 1995 is a true and accurate statement. And
when he boarded his plane, the Passenger Manifest of
Philippine Airlines Flight No. 103,[54] certified by
Agnes Tabuena[55] confirmed his return trip.
When he arrived in Manila, Webb again went
through the Philippine Immigration. In fact, the arrival
stamp and initial on his passport indicated his return
toManila on October 27, 1992. This was authenticated
by Carmelita Alipio, the immigration officer who

processed Webbs reentry.[56] Upon his return, in

October 1992, Paolo Santos, Joselito Erondain
Escobar, and Rafael Jose once again saw Webb
playing basketball at the BF's Phase III basketball
e. Alibi versus positive identification
The trial court and the Court of Appeals are one
in rejecting as weak Webbs alibi. Their reason is
uniform: Webbs alibi cannot stand against Alfaros
positive identification of him as the rapist and killer of
Carmela and, apparently, the killer as well of her
mother and younger sister. Because of this, to the
lower courts, Webbs denial and alibi were fabricated.
But not all denials and alibis should be regarded
as fabricated. Indeed, if the accused is truly innocent,
he can have no other defense but denial and alibi. So
how can such accused penetrate a mind that has been
made cynical by the rule drilled into his head that a
defense of alibi is a hangmans noose in the face of a
witness positively swearing, I saw him do it.? Most
judges believe that such assertion automatically
dooms an alibi which is so easy to fabricate. This
quick stereotype thinking, however, is distressing. For

how else can the truth that the accused is really

innocent have any chance of prevailing over such a
stone-cast tenet?
There is only one way. A judge must keep an
open mind. He must guard against slipping into hasty
conclusion, often arising from a desire to quickly
finish the job of deciding a case. A positive
declaration from a witness that he saw the accused
commit the crime should not automatically cancel out
the accuseds claim that he did not do it. A lying
witness can make as positive an identification as a
truthful witness can. The lying witness can also say as
forthrightly and unequivocally, He did it! without
blinking an eye.
Rather, to be acceptable, the positive
identification must meet at least two criteria:
First, the positive identification of the offender
must come from a credible witness. She is credible
who can be trusted to tell the truth, usually based on
past experiences with her. Her word has, to one who
knows her, its weight in gold.

And second, the witness story of what she

personally saw must be believable, not inherently
contrived. A witness who testifies about something
she never saw runs into inconsistencies and makes
bewildering claims.
Here, as already fully discussed above, Alfaro
and her testimony fail to meet the above criteria.
She did not show up at the NBI as a
spontaneous witness bothered by her conscience. She
had been hanging around that agency for sometime as
a stool pigeon, one paid for mixing up with criminals
and squealing on them. Police assets are often
criminals themselves. She was the prosecutions worst
possible choice for a witness. Indeed, her superior
testified that she volunteered to play the role of a
witness in the Vizconde killings when she could not
produce a man she promised to the NBI.
And, although her testimony included details,
Alfaro had prior access to the details that the
investigators knew of the case. She took advantage of
her familiarity with these details to include in her
testimony the clearly incompatible act of Webb
hurling a stone at the front door glass frames even

when they were trying to slip away quietlyjust so she

can accommodate this crime scene feature. She also
had Ventura rummaging a bag on the dining table for
a front door key that nobody needed just to explain
the physical evidence of that bag and its scattered
contents. And she had Ventura climbing the cars hood,
risking being seen in such an awkward position, when
they did not need to darken the garage to force open
the front doorjust so to explain the darkened light and
foot prints on the car hood.
Further, her testimony was inherently
incredible. Her story that Gatchalian, Fernandez,
Estrada, Rodriguez, and Filart agreed to take their
turns raping Carmela is incongruent with their
indifference, exemplified by remaining outside the
house, milling under a street light, visible to neighbors
and passersby, and showing no interest in the
developments inside the house, like if it was their turn
to rape Carmela. Alfaros story that she agreed to serve
as Webbs messenger to Carmela, using up her gas,
and staying with him till the bizarre end when they
were practically strangers, also taxes incredulity.
To provide basis for Webbs outrage, Alfaro said
that she followed Carmela to the main road to watch

her let off a lover on Aguirre Avenue. And,

inexplicably, although Alfaro had only played the role
of messenger, she claimed leading Webb, Lejano,
and Ventura into the house to gang-rape Carmella, as
if Alfaro was establishing a reason for later on
testifying on personal knowledge. Her swing from an
emotion of fear when a woman woke up to their
presence in the house and of absolute courage when
she nonetheless returned to become the lone witness
to a grim scene is also quite inexplicable.
Ultimately, Alfaros quality as a witness and her
inconsistent, if not inherently unbelievable, testimony
cannot be the positive identification that jurisprudence
acknowledges as sufficient to jettison a denial and an
f. A documented alibi
To establish alibi, the accused must prove by
positive, clear, and satisfactory evidence[57] that (a) he
was present at another place at the time of the
perpetration of the crime, and (b) that it was
physically impossible for him to be at the scene of the

The courts below held that, despite his

evidence, Webb was actually in Paraaque when the
Vizconde killings took place; he was not in the U.S.
from March 9, 1991 to October 27, 1992; and if he
did leave on March 9, 1991, he actually returned
before June 29, 1991, committed the crime, erased the
fact of his return to the Philippines from the records of
the U.S. and Philippine Immigrations, smuggled
himself out of the Philippines and into the U.S., and
returned the normal way on October 27, 1992. But
this ruling practically makes the death of Webb and
his passage into the next life the only acceptable alibi
in the Philippines. Courts must abandon this unjust
and inhuman paradigm.
If one is cynical about the Philippine system, he
could probably claim that Webb, with his fathers
connections, can arrange for the local immigration to
put a March 9, 1991 departure stamp on his passport
and an October 27, 1992 arrival stamp on the
same. But this is pure speculation since there had been
no indication that such arrangement was
made. Besides, how could Webb fix a foreign airlines
the Philippines and at the airport in the U.S. that had
his name on them? How could Webb fix with the U.S.

Immigrations record system those two dates in its

record of his travels as well as the dates when he
supposedly departed in secret from the U.S. to commit
the crime in the Philippines and then return there? No
one has come up with a logical and plausible answer
to these questions.

failed to present in court the immigration official who

prepared the same. But this was unnecessary. Webbs
passport is a document issued by the Philippine
government, which under international practice, is the
official record of travels of the citizen to whom it is
issued. The entries in that passport are presumed true.

The Court of Appeals rejected the evidence of

Webbs passport since he did not leave the original to
be attached to the record. But, while the best evidence
of a document is the original, this means that the same
is exhibited in court for the adverse party to examine
and for the judge to see. As Court of Appeals Justice
Tagle said in his dissent,[59] the practice when a party
does not want to leave an important document with
the trial court is to have a photocopy of it marked as
exhibit and stipulated among the parties as a faithful
reproduction of the original. Stipulations in the course
of trial are binding on the parties and on the court.
The U.S. Immigration certification and the
computer print-out of Webbs arrival in and departure
from that country were authenticated by no less than
the Office of the U.S. Attorney General and the State
Department. Still the Court of Appeals refused to
accept these documents for the reason that Webb

The U.S. Immigration certification and

computer print-out, the official certifications of which
have been authenticated by the Philippine Department
of Foreign Affairs, merely validated the arrival and
departure stamps of the U.S. Immigration office on
Webbs passport. They have the same evidentiary
value. The officers who issued these certifications
need not be presented in court to testify on
them. Their trustworthiness arises from the sense of
official duty and the penalty attached to a breached
duty, in the routine and disinterested origin of such
statement and in the publicity of the record.[61]
The Court of Appeals of course makes capital
of the fact that an earlier certification from the U.S.
Immigration office said that it had no record of Webb
entering the U.S. But that erroneous first certification
was amply explained by the U.S. Government and

Court of Appeals Justice Tagle stated it in his

dissenting opinion, thus:
While it is true that an earlier
Certification was issued by the U.S. INS
on August 16, 1995 finding no evidence
of lawful admission of Webb, this was
already clarified and deemed erroneous
by no less than the US INS Officials. As
explained by witness Leo Herrera-Lim,
Consul and Second Secretary of the
in Washington D.C., said Certification
did not pass through proper diplomatic
channels and was obtained in violation
of the rules on protocol and standard
procedure governing such request.
The initial request was merely
initiated by BID Commissioner Verceles
who directly communicated with the
in San
Francisco, USA, bypassing the Secretary
of Foreign Affairs which is the proper
protocol procedure. Mr. Steven Bucher,
the acting Chief of the Records Services
Board of US-INS Washington D.C. in
his letter addressed to Philip Antweiler,

Department, declared the earlier

Certification as incorrect and erroneous
as it was not exhaustive and did not
reflect all available information. Also,
Richard L. Huff, Co-Director of the
Office of Information and privacy, US
Department of Justice, in response to
the appeal raised by Consul General
Teresita V. Marzan, explained that the
INS normally does not maintain records
on individuals who are entering the
country as visitors rather than as
immigrants: and that a notation
concerning the entry of a visitor may be
made at the Nonimmigrant Information
system.Since appellant Webb entered
the U.S. on a mere tourist visa,
obviously, the initial search could not
have produced the desired result
inasmuch as the data base that was
looked into contained entries of the
names of IMMIGRANTS and not that
of NON-IMMIGRANT visitors of the

The trial court and the Court of Appeals

expressed marked cynicism over the accuracy of
travel documents like the passport as well as the

domestic and foreign records of departures and

arrivals from airports. They claim that it would not
have been impossible for Webb to secretly return to
the Philippines after he supposedly left it on March 9,
1991, commit the crime, go back to the U.S., and
openly return to the Philippines again on October 26,
1992. Travel between the U.S. and thePhilippines,
said the lower courts took only about twelve to
fourteen hours.
If the Court were to subscribe to this extremely
skeptical view, it might as well tear the rules of
evidence out of the law books and regard suspicions,
surmises, or speculations as reasons for impeaching
evidence. It is not that official records, which carry
the presumption of truth of what they state, are
immune to attack. They are not. That presumption can
be overcome by evidence. Here, however, the
prosecution did not bother to present evidence to
impeach the entries in Webbs passport and the
certifications of the Philippine and U.S. immigration
services regarding his travel to the U.S. and back. The
prosecutions rebuttal evidence is the fear of the
unknown that it planted in the lower courts minds.
7. Effect of Webbs alibi to others

Webbs documented alibi altogether impeaches

Alfaro's testimony, not only with respect to him, but
also with respect to Lejano, Estrada, Fernandez,
Gatchalian, Rodriguez, and Biong. For, if the Court
accepts the proposition that Webb was in
the U.S. when the crime took place, Alfaros testimony
will not hold together. Webbs participation is the
anchor of Alfaros story. Without it, the evidence
against the others must necessarily fall.
In our criminal justice system, what is
important is, not whether the court entertains doubts
about the innocence of the accused since an open
mind is willing to explore all possibilities, but
whether it entertains a reasonable, lingering doubt as
to his guilt. For, it would be a serious mistake to send
an innocent man to jail where such kind of doubt
hangs on to ones inner being, like a piece of meat
lodged immovable between teeth.
Will the Court send the accused to spend the
rest of their lives in prison on the testimony of an NBI
asset who proposed to her handlers that she take the

role of the witness to the Vizconde massacre that she

could not produce?
ASIDE the Decision dated December 15, 2005 and
Resolution dated January 26, 2007 of the Court of
and ACQUITS accused-appellants Hubert Jeffrey P.
Webb, Antonio Lejano, Michael A. Gatchalian,
Hospicio Fernandez, Miguel Rodriguez, Peter Estrada
and Gerardo Biong of the crimes of which they were
charged for failure of the prosecution to prove their
guilt beyond reasonable doubt. They are ordered
immediately RELEASED from detention unless they
are confined for another lawful cause.
Let a copy of this Decision be furnished the
Director, Bureau of Corrections, Muntinlupa City for
immediate implementation. The Director of the
Bureau of Corrections is DIRECTED to report the
action he has taken to this Court within five days from
receipt of this Decision.


Appellant Frisco Holgado was charged in the court of First
Instance of Romblon with slight illegal detention because
according to the information, being a private person, he did
"feloniously and without justifiable motive, kidnap and detain one
Artemia Fabreag in the house of Antero Holgado for about eight
hours thereby depriving said Artemia Fabreag of her personal
liberty." On may 8, 1948, the day set for the trial, the trial court
proceeded as follows:

Is this the case ready for trial?

I am ready, your honor.

Sentenced reserved.
Two days later, or on May 10, 1948, the trial court rendered the
following judgment:

Court: to the accused.

Q. do you have an attorney or are you going to plead guilty? A.
I have no lawyer and I will plead guilty.

[Criminal Case No. V-118]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FRISCO HOLGADO defendant-appellant.



Arraign the accused.


The accused, Frisco Holgado, stands charged with the crime of

kidnapping and serious illegal detention in the following

Interpreter read the information to the accused in the local

dialect after which he was asked this question.


The provincial fiscal is hereby ordered to investigate that


That on or about December 11, 1947, in the municipality of

Concepcion, Province of Romblon, Philippines and within the
jurisdiction of this Honorable Court, the said accused being a
private individual, did then and there wilfully, unlawfully and
feloniously, and without justifiable motive, kidnap and detain one
Artemia Fabreag in the house of Antero Holgado for about 8
hours thereby depriving said Artemia Fabreag of her personal


Contrary to law.

I have investigated this case and found out that this Ocampo
has nothing to do with the case and I found no evidence against
this Ocampo.

This case is called for trial on May 8, 1948. Upon arraignment the
accused pleaded guilty to the information above described.

Q. What do you plead? A. I plead guilty, but I was instructed by

one Mr. Ocampo.
Q. Who is that Mr. Ocampo, what is his complete name? A. Mr.
Numeriano Ocampo.

The offense committed by the accused is kidnapping and serious

illegal detention as defined by article 267 of the Revised Penal
Code as amended by section 2 of Republic Act No. 18 and
punished by reclusion temporal in it minimum period to death.
Applying indeterminate sentence law the penalty shall be prision
mayor in its maximum degree to reclusion temporal in the
medium degree as minimum, or ten years (10) and one (1) day
of prision mayor to twenty (20) years, with the accessory
penalties provided for by law, with costs. The accused is entitled
to one-half of his preventive imprisonment.
It must be noticed that in the caption of the case as it appears in
the judgment above quoted, the offense charged is named
SLIGHT ILLEGAL DETENTION while in the body of the judgment
if is said that the accused "stands charged with the crime of
kidnapping and serious illegal detention." In the formation filed by
the provincial fiscal it is said that he "accuses Frisco Holgado of
the crime of slight illegal detention." The facts alleged in said
information are not clear as to whether the offense is named
therein or capital offense of "kidnapping and serious illegal
detention" as found by the trial judge in his judgment. Since the
accused-appellant pleaded guilty and no evidence appears to
have been presented by either party, the trial judge must have
deduced the capital offense from the facts pleaded in the
Under the circumstances, particularly the qualified plea given by
the accused who was unaided by counsel, it was not prudent, to
say the least, for the trial court to render such a serious judgment
finding the accused guilty of a capital offense, and imposing upon
him such a heavy penalty as ten years and one day of prision
mayor to twenty years, without absolute any evidence to
determine and clarify the true facts of the case.

The proceedings in the trial court are irregular from the beginning.
It is expressly provided in our rules of Court, Rule 112, section 3,
If the defendant appears without attorney, he must be informed by
the court that it is his right to have attorney being arraigned., and
must be asked if he desires the aid of attorney, the Court must
assign attorney de oficio to defend him. A reasonable time must
be allowed for procuring attorney.
Under this provision, when a defendant appears without attorney,
the court has four important duties to comply with: 1 It must
inform the defendant that it is his right to have attorney before
being arraigned; 2 After giving him such information the court
must ask him if he desires the aid of an attorney; 3 If he
desires and is unable to employ attorney, the court must assign
attorney de oficio to defend him; and 4 If the accused desires
to procure an attorney of his own the court must grant him a
reasonable time therefor.
Not one of these duties had been complied with by the trial court.
The record discloses that said court did not inform the accused of
his right to have an attorney nor did it ask him if he desired the
aid of one. The trial court failed to inquire whether or not the
accused was to employ an attorney, to grant him reasonable time
to procure or assign an attorney de oficio. The question asked by
the court to the accused was "Do you have an attorney or are you
going to plead guilty?" Not only did such a question fail to inform
the accused that it was his right to have an attorney before
arraignment, but, what is worse, the question was so framed that
it could have been construed by the accused as a suggestion
from the court that he plead guilt if he had no attorney. And this is
a denial of fair hearing in violation of the due process clause
contained in our Constitution.

One of the great principles of justice guaranteed by our

Constitution is that "no person shall be held to answer for a
criminal offense without due process of law", and that all accused
"shall enjoy the right to be heard by himself and counsel." In
criminal cases there can be no fair hearing unless the accused be
given the opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be
heard by counsel. Even the most intelligent or educated man may
have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to
establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this reason that
the right to be assisted by counsel is deemed so important that it
has become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to
apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but
it is essential that the court should assign one de oficio if he so
desires and he is poor grant him a reasonable time to procure an
attorney of his own.
It must be added, in the instant case, that the accused who was
unaided by counsel pleaded guilty but with the following
qualification: "but I was instructed by one Mr. Ocampo." The trial
court failed to inquire as to the true import of this qualification. the
record does not show whether the supposed instructions was real
and whether it had reference to the commission of the offense or
to the making of the plea guilty. No investigation was opened by
the court on this matter in the presence of the accused and there
is now no way of determining whether the supposed instruction is
a good defense or may vitiate the voluntariness of the confession.
Apparently the court became satisfied with the fiscal's information
that he had investigated Mr. Ocampo and found that the same
had nothing to do with this case. Such attitude of the court was

wrong for the simple reason that a mere statement of the fiscal
was not sufficient to overcome a qualified plea of the accused.
But above all, the court should have seen to it that the accused
be assisted by counsel specially because of the qualified plea
given by him and the seriousness of the offense found to be
capital by the court.
The judgment appealed from is reversed and the case is
remanded to the Court below for a new arraignment and a new
trial after the accused is apprised of his right to have and to be
assisted by counsel. So ordered.


July 1994,








Nine years and four months ago this Court declared:

Rape is a nauseating crime that deserves the

condemnation of all decent person who recognize
that a womans cherished chastity is hers alone to
surrender of her own free will.Whoever violates
that will descends to the level of the odious
beast. The act becomes doubly repulsive where
the outrage is perpetrated on ones own flesh and
blood for the culprit is reduced to lower than the
lowly animal. The latter yields only to biological
impulses and is unfettered by social inhibitions
when it mates with its own kin, but the man who
rapes his own daughter violates not only her purity
and her trust but also the mores of his society
which he has scornfully defied. By inflicting his
animal greed on her in a disgusting coercion of
incestuous lust, he forfeits all respect as a human
being and is justly spurned by all, not least of all by
the fruit of his own loins whose progeny he has
forever stained with his shameful and shameless
At the end of the day, after resolving this case of 14year-old Eden Agbayani who charged her own father with
rape committed in the sanctity of their rented room on 19

Before this Court on automatic review is the

decision of the Regional Trial Court of Quezon City,
Branch 106, in view of the death penalty imposed by it for
the crime of rape, defined and penalized under Article
335 of the Revised Penal Code, as amended by R.A.


On 12 September 1994, the Station Investigation and

Intelligence Division of the National Capital Region
Command, Philippine National Police (PNP), endorsed to
the Office of the City Prosecutor of Quezon City the
complaint of Eden Agbayani (hereafter EDEN) for rape
against her father, herein accused-appellant Eduardo
Agbayani y. Mendoza.

After appropriate preliminary investigation, a

complaint for rape signed by EDEN, assisted by her
sister Fedelina Agbayani, and subscribed and sworn to
before Asst. City Prosecutor Charito B. Gonzales, was
filed against appellant with the Regional Trial Court of
Quezon City on 27 October, 1994. The case was
docketed as Criminal Case No. Q-94-59149, then set for
arraignment, pre-trial and trial on 22 December 1994.


At his arraignment on 22 December 1994, appellant,

assisted by Attys. Samuel Baldado and Edwin dela Cruz
as counsel de oficio, entered a plea of not guilty. Upon
agreement of the parties, trial on the merits immediately

followed, with the prosecution presenting the first

witness, Dr. Florante Baltazar, a Medico-Legal Officer of
the PNP Crime Laboratory, who cross-examined by Atty.
Baldado. On the succeeding dates of trial, the
prosecution presented EDEN and SPO1 Salvador
Buenviaje. During these hearings, however, appellant
was represented by Atty. Arturo Temanil of the Public
Attorneys Office.

realize that the incident between us and my father

is purely family problem that arise from the
disciplinarian attitude of our father;

On this part, the defense presented appellant,

Adoracion M. Cruz, Fedelina Agbayani, as well as EN
who identified her and Fedelinas affidavit of desistance,
which was subscribed and sworn to before notary
public Eranio Cedillo on 6 February 1995. Said affidavit
reads as follows:

That I am executing this affidavit for purposes of

finally withdrawing the instant case and therefrom
requesting this Honorable Court to dismiss the
case against our father.

We, Eden Agbayani, 14 years old, complainant and

Fedelina Agbayani, 19 years old, sister of Eden
Agbayani, and presently residing at No., Phase 1,
United Glorieta, Kaniogan, Pasig, Metro Manila,
after having been duly sworn to in accordance with
law do hereby depose and states [sic]:

As EDEN declared in open court what she said in her

previous testimony and sworn statement were not true,
the trial court held her in direct contempt of court,
reasoning that her intentional falsehood was offensive to
its dignity and a blatant disrespect to the Court, and
justice. Accordingly, the trial court ordered her committed
to incarceration and imprisonment within the period
provided by law, which penalty however was modified to
a fine of P200.00 upon EDENs motion for







That we are the complainant [sic] against our

father, Eduardo Agbayani pending before this
Honorable Court docketed as Criminal Case No.
That after evaluating the circumstance that lead
[sic] to the filing of the instant case I formally

That this resulted to family misunderstanding,

hence we decided to formally forego this case and
withdraw the same;

This affidavit was executed freely and voluntarily.



On rebuttal, the prosecution had EDEN back on the

witness stand. She retracted her affidavit of desistance

and claimed that she had signed it under coercion by her

mother and elder sister.
The trial courts summary of the evidence for the
prosecution, with the references to the pages of the
stenographic notes and exhibits deleted, is as follows:

The evidence adduced on the record shows that

sometime in September of 1993 in Malolos,
Bulacan, the accused was charged by his two
[with] the crime of rape which case was raffled to
the sala of Judge Danilo Manalastas fo Branch 7,
Regional Trial Court, Bulacan. The case was,
however, provisionally dismissed by said Judge
after the complainants desisted from pursuing the
same in May 1994. Eduardo Agbayani was thus
consequently released from jail on July 13,
1994. Three (3) days thereafter, he began living
with four (4) of his six (6) daughters, Fedelina,
Eden, Diana, and Edina, in a rented room at 30-A
Makabayan St., Bgy. Obrero, Quezon City.
The evidence of the prosecution, in part consisting
of the testimonies of Complainant Eden Agbayani,
Medico-Legal Officer, Dr. Florante Baltazar and
SPO1 Salvador Buenviaje, shows that the above
mentioned address, the complainant, Eden
Agbayani, on the evening of July 19, 1994, was

sleeping on the floor of the room with her father,

the accused Eduardo Agbayani was awakened
from her sleep by hands caressing her breast and
vagina. She turned to discover that it was her
father who was then molesting her. Frightened,
she asked, Tay bakit niyo po ginagawa sa akin ito,
gayong kalalabas mo lang sa kulungan? and
threatened to kill her [sic]. The accused then
proceeded to undress her. Thereafter he
undressed himself and succeeded in having carnal
knowledge with the complainant who could only
cry helplessly. The complainant thereafter felt
blood dripping from her vagina and felt pain.
The next day, or on July 20, 1994, the complainant
informed her elder sister, Fedelina, of what had
been done to her by her father. She was told not to
worry as they would go to Bulacan to report the
incident to Fiscal Caraeg of Bulacan, who had, the
year before, handled the rape case filed by
Fedelina and Dodima. Several attempts were
made by her sisters, Fedelina and Eden to reach
the said fiscal but it was only on September 9,
1994, that they were able to meet with him. Fiscal
Caraeg of Bulacan reported the complaint to Judge
Danilo Manalastas who reopened the previous
provisionally dismissed case and issued a warrant
of arrest against the herein accused.

With the assistance of police officers from Station

10 of the SIID in Quezon City, the accused was
arrested on the same day at his residence at 30-A
Makabayan St., Bgy. Obrero, Quezon City and was
later brought to Malolos, Bulacan where he is
currently detained. After the accuseds arrest, Eden
and Fedelina returned to Station 10 where they
made individual statements before SPO1 Salvador
Buenviaje narrating the events leading to and
occurring after the incident of July 19, 1994.
The next morning, Eden was examined by MedicoLegal Officer and Chief of the PNP Crime
Laboratory, Dr. Florante Baltazar, a colonel, who,
accordingly, prepared the corresponding MedicoLegal Report.[17]
Appellant put up the defense of denial and
alibi. According to him, he could not have raped his
daughter EDEN, because on 19 July 1994, he was in
Barangay Victoria in Sual, Pangasinan, visiting his eldest
daughter. He declared that EDEN charged him with
rape because he had hit her with a belt after he caught
her lying about her whereabouts on night. Then on 24
July 1994, she left their rented apartment and did not
return anymore.


Adoracion Cruz corroborated appellants alibi. She

declared that on 17 July 1994, appellant requested her to

take care of his children because he was going to

Pangasinan to visit his sick father, returning home only
on 21 July 1994.

The trial court gave full credence to the testimony of

EDEN, who appeared, during her entire testimonies on
January 20 and May 4, 1995, coherent, candid and
responsive; futher, it commended her for her courage and
her unwavering strength in the midst of the emotional and
psychological strain and humiliation, not to mention the
pressure and lack of moral support of her family, brought
on by the filing of this case. It also ruled that EDEN did
not voluntarily execute the affidavit of desistance, as it
was procured at the behest of her mother and sister for
whom the sanctity of the family and the familys good
name were more important than demanding punishment
for whatever injury the complainant might have suffered
in the hands of the accused. Besides, even
assuming arguendo that no such pressure was exerted
by her mother and sister, the trial court declared that it
understood EDENs moral predicament, viz for a child like
EDEN, it was difficult to charge her own father with rape;
insist on his punishment; and hereby inflict emotional
stress and financial strain upon the members of her
family, particularly her mother.
The trial court likewise gave full faith to the sworn
statement (Exhibit E) of Fedelina Agbayani.
Turning to the defense of appellant, the trial court
found his alibi wholly self-serving, and characterized the

testimony of Adoracion Cruz unworthy of belief. As to

appellants claim that EDEN filed the complaint because
of a grudge against him, the trial court found this
incredible,if not totally absurd, for:

The trial court finally found that appellant

employed on EDEN force or intimidation by virtue of his
moral ascendancy over her and his threat that he would
kill her if she reported the incident to anyone.

The complainant is an innocent girl of tender years

who is likely to possess such vindictiveness and
death of conscience as to concoct such a
malicious and damaging story.The complainant
appeared, during her entire testimonies on January
20 and May 4, 1995, coherent, candid and
responsive. Her retraction on March 16 was
sufficiently explained to this Court the seriousness
of the injury upon he person and dignity inflicted
upon by the accused. Even assuming argumenti
gratia that the complainant would indeed lodge a
complaint against her father solely on account of
an altercation with him, it is highly unlikely that the
complainant would concoct a charge which would
damage her and wreck havoc on her familys
reputation, destroy the household peace and
subject her father, the accused, to a grave
punishment which by dent of express of law, can
obliterate him from the face of this earth. Indeed, to
uphold the defenses proposition would be
stretching the imagination too far, if not to the

Accordingly, the trial court, applying Section 11 of

R.A. No. 7659 which imposes the penalty of death when
the victim is under eighteen years of age and the
offender is a parent, ascendant, stepparent, guardian,
relative by consanguinity or affinity within the third civil
degree, or common law spouse of the parent of the
victim, rendered judgement against appellant, to wit:

WHEREFORE, considering all the foregoing,

judgment is hereby rendered finding the accused,
reasonable doubt of the crime of RAPE committed
against complainant, Eden Agbayani, his minor
daughter. This Court as a consequence thereof,
hereby imposes upon him the supreme penalty law
R.A. 7659. Further, Accused is hereby ordered to
pay the complainant, Eden Agbayani, the sum of
P75,000.00 as damages, with all the necessary
penalties provided for by law without subsidiary
imprisonment, however, in the event of insolvency
and to pay the costs.
Let the entire records of this case be forwarded to
the Supreme Court on automatic review.

On 26 May 1995, appellant, through his new
counsel de parte Attorneys Froilan V. Siobal and
Domingo Floresta, filed a Motion for New Trial on the
ground that serious irregularities prejudicial to his
substantial rights were committed during the trial, viz., the
failure of the counsel de oficio to: (a) present at trial the
Barangay Captain of Barangay Obrero, Quezon City, who
would have testified, on basis of his certification attached
to the motion, that there was a house bearing No. 30,
Makabayan St., in his barangay, but that there was no
such place as 30-A Makabayan St. of said barangay,
which was the address given by EDEN; (b) consider the
futility of Adoracion Cruzs testimony; (c) present private
complainants mother and sister Fedelina on sur-rebuttal
to testify as to the circumstances which brought about the
execution of the affidavit of desistance; and (d) cross
examine complainant and the police investigator
exhaustively. He further alleged that his counsel de
oficio was never prepared during all the scheduled
hearings, worse, even waived the presence of appellant
after the third witness for the prosecution was
presented. He also averred that the trial court used
its inherent power of contempt to intimidate private

could not, with reasonable diligence, have discovered

and produced at the trial and which if introduced and
admitted at trial would probably change the judgment of
the court.


In their Comments/Opposition to the Motion for New

Trial, the public and private prosecutors alleged that
there were no such irregularities; neither was there new
and material evidence to be presented that appellant

In its Order of 31 July 1995, the trial court

denied the motion for new trial being devoid of merit and
for not being within the purview of Sections 1 and 2, Rule
121 of the Rules of Court.

In his Appellants Brief filed before this Court,

appellant contends that the trial court erred in: (a)
denying his motion for new trial; and (b) holding that the
prosecution proved beyond reasonable doubt that he
committed the crime charged.
In support of the first assigned error, appellant
reiterates the grounds in his motion for new trial, and
adds two others namely, (1) the lower court failed to
apprise him of his right to have counsel of his own
choice; and (2) the lower court did not give him the
opportunity to prepare for trial, despite the mandated
period of two days prescribed in Section 9 of Rule 116 of
the Rules of Court.
In his second assigned error, appellant contends that
EDENs testimony is not sufficient to convict, since its is
contradictions. Considering their proximity to EDEN, it
was impossible for her sisters or any one of them not to
have been awakened when EDEN was allegedly being

abused by him. Strangely, EDEN simply kept quiet and

allowed him to abuse her; neither did she shout for help
or put up a fight that would have awakened her
sisters. Notably, EDEN and her sisters allowed him to live
and sleep with them again in their rented room even after
the alleged rape.
Finally, appellant asserts that EDENs testimony is
unreliable because her affidavit of desistance must have
necessarily been contradictory thereto. Her subsequent
turn-around that she was pressured and influenced to
execute and sign the affidavit of desistance further
confirmed her being untruthful and, in effect, demolished
whatsoever faith left on her charge against the accused.
The Office of the Solicitor General (OSG) considers
the first assigned error as devoid of merit. When
appellant appeared without counsel at the arraignment,
the trial court informed him that it would appoint de
oficio counsel for him if he so desired, to which appellant
agreed. Moreover, the 2-day period to prepare for trial
provided in Section 9 of Rule 116 is merely directory and
does not prohibit the court from proceeding with trial after
arraignment, especially if the defense, as here,
consented thereto. It would have been entirely different if
the defense did not agree, in which case the court would
have no other alternative but to grant him the period.

his counselde oficio. The latters request for a

continuance because he had not yet conferred with
appellant was not evidence of counsels lack of
sincerity. On the contrary, it showed counsels awareness
of his duty to confer with appellant to ferret out the
relevant facts as regards the second witness for the
prosecution. Likewise, the waiver of appellants presence
during the hearing of 18 March 1995 did not prejudice
him, because on that date, the defense presented EDEN
to testify as to her affidavit of desistance, and Fedelina to
corroborate the statements of EDEN which testimonies
were in appellants favor. As to the manner appellants
counsel de oficio cross-examined the prosecution
witnesses, the OSG stresses that the record shows that
said counsel tried his best.
The OSG then characterizes the second assigned
error as barren of merit. EDENs positive identification of
appellant as the author of the crime rendered appellants
defense of alibi unavailing; moreover, she demonstrated
clearly and vividly what transpired that fateful evening of
19 July 1994. Thus in view of EDENs candid and
categorical manner of testifying the OSG concluded that
she was a credible witness.

As to the commission of rape in a small room and in

presence of other persons, the OSG maintains that such
was not at all improbable. There was, as well, nothing
unusual in EDENs silence; as she could only attempt to
shout because appellant had succeeded in covering her
mouth with his hands and exercised a high level of moral

As to appellants other grievances, the OSG points

out that throughout all the hearings, appellant never
questioned the way his defense was being handled by

ascendancy over EDEN, his daughter. Hence the OSG

invokes the principle that in a rape committed by a father
against his own daughter, the formers moral ascendancy
and influence over the latter substitutes for violence or


As regards EDENs affidavit of desistance, the OSG

maintains that court look with disfavor on retraction of
testimonies previously given in court, for such can easily
be secured from poor and ignorant witnesses usually for
monetary consideration, as well as the probability that it
may later be repudiated.

In his Reply Brief, appellant countered that his

consent to the appointment of counsel de oficio his
arraignment did not relieve the court of its duty under
Section 6 of Rule 116 of the Rules of Court to inform him
of his right to counsel and that it would be grievous error
to deny an accused such right. Appellant then elaborated
on this point as follows:

This is not without judicial precedent. In People vs.

Cachero, 73 Phil. 426 and People vs. Domenden,
73 Phil. 349, cited in RJ Franciscos Criminal
Procedure, Third Ed., 1966, p. 323 it was held,
The courts should comply with Rule 116, Sec. 3. It
would be a grievous error to proceed by
sentencing the accused without due process of law

and this is not complete, when the accused is

denied the right recognized by said rule. The
records must show compliance therewith or that
the accused renounced his right to be assisted by
counsel. This is demanded by the interest of
justice and remove all doubt that if the accused
had waived said right, he was fully informed before
giving his plea of its consequences. Omission by
courts whether voluntary should not truly be
censured but also condemned.
Discussing further the right to the 2-day period to
prepare for trial, the appellant contends that said right:

[H]as been held to be mandatory and denial of this

right is reversible error and a ground for new
trial. (R.J. Franciscos Criminal Procedure, Third
Ed., 1986, p. 404, citing people vs. Mijares, et al.,
47 OG 4606; Dumasig v. Morave, 23 SCRA
259). This must be so xxx to prevent that any
accused be caught unaware and deprived of the
means of properly facing the charges presented
against him.
The first assigned error does not persuade this
Court. It is true that the transcript of the stenographic
notes of the proceedings of 22 December 1994 and the
order issued by the trial court after the conclusion of said
proceedings only state that the court appointed de

oficio counsel with the consent of the said accused. They

do not categorically disclose that the trial informed
appellant of his right to counsel of his own
choice. However, this does not mean that the trial court
failed to inform appellant of such right. The precise time
the two counsel de oficio were appointed is not disclosed
in the record either. At the recorded portion of the
arraignment aspect of the proceedings on 22 December
1994, the two formally entered their appearance, thus:
COURT: Call the case.

For the accused, Your Honor appointed by the court as

counsel de oficio.[29]

This obviously means that the appointment had taken

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


(Interpreter calls the case).



For the prosecution, Your Honor.
Respectfully appearing for the prosecution, Your Honor
under the control and direct supervision of the Trial
Prosecutor, Your Honor, we are ready to present our
first witness.
For the accused Your Honor, appointed as counsel de


It is settled that the failure of the record to disclose

affirmatively that the trial judge advised the accused of
his right to counsel is not sufficient ground to reverse
conviction.The reason being that the trial court must be
presumed to have complied with the procedure
prescribed by law for the hearing and trial of cases, and
that such a presumption can only be overcome by an
affirmative showing to the contrary. Thus it has been held

that unless the contrary appears in the record, or that it is

positively proved that the trial court failed to inform the
accused of his right to counsel, it will be presumed that
the accused was informed by the court of such right.

In U.S. v. Labial, this Court held:


Adhering to the doctrine laid down in that case, the

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

While in People v. Miranda this Court explicitly


However, said counsel calls attention to the fact

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

the first witness for the prosecution, Dr. Florante Baltazar.

Besides, it is only in this appeal that appellant raised
the issue of the failure of the trial court to inform him of
the right to counsel. At no time did he previously raise it
in the trial court despite ample opportunity to do so. His
consent to be assisted by counsel de oficio, coupled with
said counsels extensive cross-examination of Dr.
Baltazar, may even be considered a waiver of his right to
question the alleged failure of the trial court to inform of
his right to counsel.

prepare for trial unless the court for good cause

grants him further time.

People v. Domenden and
People v. Cachero cited
inapplicable. In both casis the trial courts there clearly
failed to inform the accused of their right to counsel nor
appoint de
oficio counsel
arraignment. Nevertheless, we take this opportunity to
admonish trial courts to ensure that their compliance with
their pre-arraignment duties to inform the accused of his
right to counsel, to ask him if he desires to have one, and
to inform him that, unless he is allowed to defend himself
in person or he has counsel of his choice, a de
oficio counsel will be appointed for him, must appear on

During the succeeding hearings, appellant was

represented by Atty. Temanil of the Public Attorneys
Office in Quezon City, who entered his appearance as de
parte, and not as de oficio, counsel. It is to be presumed
that Atty. Temanils services were obtained pursuant to the
law creating the Public Attorneys Office (PAO), formerly
the Citizens Legal Assistance Office (CLAO). There is at
all no showing that Atty. Temanil lacked the competence
and skill to defend appellant. The latters contention that
his counsel was not ready at all times because at the
hearing on 20 January 1995 he asked for a continuation
as he has not yet interviewed [his] client, is
misleading. Atty. Temanil made that statement after he
cross-examined EDEN and after the judge realized that it
was almost 1:00 oclock in the afternoon and both of them
were already hungry, thus:





Turning to the alleged violation of appellants right to

the 2-day period to prepare for trial, Section 9 of Rule 116
of the Rules of Court reads:

Sec. 9. Time to prepare for trial. -- After a plea of

not guilty, the accused is entitled to two (2) days to

It must be pointed out that the right must be

expressly demanded. Only when so demanded does
denial thereof constitute reversible error and a ground for
new trial. Further, such right may be waived, expressly
or impliedly. In the instant case, appellant did not ask for
time to prepare for trial, hence, he effectively waived such






I just want to make it on record, Your

Honor that from the start of the trial the
witness appears to be fluent and suffers
no difficulty in answering the questions,
even the questions propounded by the
Private Prosecutor, Your Honor.
Put that on record.
That is true, Atty. Temanil, it is almost
1:00 oclock in the afternoon and we are
both hungry now.
I will just asked [sic] for continuance
considering that I have not yet
interviewed my client, Your Honor.[46]
Neither is there merit in appellants claim that his
counsel committed irregularities: (1) in not considering
the futility of the testimony of Adoracion Cruz; (2) in not
presenting the barangay captain in the evidence in chief
for the defense, and EDENs mother and sister Fedelina
in sur-rebuttal; and (3) in not cross-examining
exhaustively EDEN.

Adoracion Cruz was presented to corroborate

appellants alibi that he was in the province and not in
their rented room from 17 to 21 July 1994. On the other
hand, the testimony of the barangay captain could not
alter the fact that rape was committed in a rented room in
barangay. Appellant neither testified that he did not
occupy a house numbered 30-A nor denied that he was
living with EDEN and her sisters in that room. Besides,
he and his children were not renting the entire house, but
merely a room, which could probably be the unit
numbered 30-A referred to by EDEN.
As to the presentation of EDENs mother and sister
Fedelina as sur-rebuttal witnesses to disprove the claim
of EDEN that they coerced her into signing the affidavit of
desistance, suffice it to state that there was nothing to
show that they were in fact willing to refute EDENs claim
WHEREFORE, judgment is hereby rendered
AFFIRMING the decision of the Regional Trial Court of
Quezon City, Branch 106, in Criminal Case No. Q-9459149 finding accused-appellant EDUARDO AGBAYANI
y MENDOZA guilty beyond reasonable doubt as principal
of the crime of rape defined and penalized under under
Article 335 of the Revised Penal Code, as amended by
R.A. No. 7659, and imposing upon him the penalty of
DEATH, subject to the above modification as to the
amount of indemnity.

Two justices voted to impose upon the accusedappellant the penalty of reclusion perpetua.
Upon the finality of this Decision, let certified true
copies thereof, as well as the records of this case, be
forwarded without delay to the Office of the President for
possible exercise of executive clemency pursuant to
Article 83 of the Revised Penal Code, as amended by
Section 25 of R.A. No. 7659.


Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas,

has been forced to respond to no less than five informations for
various crimes and misdemeanors, has appeared with her
witnesses and counsel at hearings no less than on eight different
occasions only to see the cause postponed, has twice been
required to come to the Supreme Court for protection, and now,
after the passage of more than one year from the time when the
first information was filed, seems as far away from a definite
resolution of her troubles as she was when originally charged.
Philippine organic and statutory law expressly guarantee that in
all criminal prosecutions the accused shall enjoy the right to have
a speedy trial. Aurelia Conde, like all other accused persons, has
a right to a speedy trial in order that if innocent she may go free,
and she has been deprived of that right in defiance of law.
Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily

postponed without her consent, is palpably and openly unjust to

her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal
preliminary examination, and could have prepared the case for a
trial free from vexatious, capricious, and oppressive delays.

forth in previous informations, and the charges now pending

before the justice of the peace of Lucena, Tayabas, are ordered
dismissed, with cost against the respondent fiscal. We append to
our order the observation that, without doubt, the AttorneyGeneral, being fully cognizant of the facts of record, will take such
administrative action as to him seems proper to the end that
incidents of this character may not recur. So ordered.

Once before, as intimidated, the petitioner had to come to us for

redress of her grievances. We thought then we had pointed out
the way for the parties. But it seems not. Once again therefore
and finally, we hope, we propose to do all in our power to assist
this poor woman to obtain justice. On the one hand has been the
petitioner, of humble station, without resources, but fortunately
assisted by a persistent lawyer, while on the other hand has been
the Government of the Philippine Islands which should be the last
to set an example of delay and oppression in the administration of
justice. The Court is thus under a moral and legal obligation to
see that these proceedings come to an end and that the accused
is discharged from the custody of the law.
We lay down the legal proposition that, where a prosecuting
officer, without good cause, secures postponements of the trial of
a defendant against his protest beyond a reasonable period of
time, as in this instance for more than a year, the accused is
entitled to relief by a proceeding in mandamus to compel a
dismissal of the information, or if he be restrained of his liberty, by
habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the
matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3
Montana, 512. See further our previous decision in Conde vs.
Judge of First Instance, Fourteenth Judicial District, and the
Provincial Fiscal of Tayabas, No. 21236.1
The writ prayed for shall issue and the Provincial Fiscal of
Tayabas shall abstain from further attempts to prosecute the
accused pursuant to informations growing out of the facts set

People v Seneris
The legal issue posed in this special civil action for certiorari, with
prayer for a writ of preliminary injunction, spawned by the August
4, 1978 order of respondent judge in Criminal Case No. 750 for
parricide against therein accused Pilar Angeles de Pimentel,
hereinafter referred to as private respondent, is the admissibility
in evidence of the testimony of a prosecution witness in the said
criminal case who dies before completion of his crossexamination. That issue is crucial to the fate of private
respondent, considering that the deceased prosecution witness
"... is the most vital and the only eyewitness available to the

prosecution against respondent Pilar Angeles de Pimentel for the

commission of the gruesome crime of parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin,
who was then on official detail with the office of the City Fiscal,
Zamboanga City, filed with the Court of First Instance, Sixteenth
Judicial District, Zamboanga City, an amended information for
parricide in Criminal Case No. 1742, charging herein private
respondent as principal by inducement, Mario Nemenio y delos
Santos and Salim Doe as principals by direct participation and
Moises Andaya y Julkanain, as accomplice, in the fatal stabbing
on September 6, 1977 in Zamboanga City of Eduardo Pimentel y
Orario, the lawful husband of private respondent. The amended
information reads:
That on or about September 6, 1977, in the City of
Zamboanga, Philippines, and within the
jurisdiction of this Court, the above-named
accused Pilar Angeles de Pimentel, with
deliberate intent to kill her husband, Eduardo
Pimentel y Orario, with whom she was united in
lawful wedlock, did then and there, willfully,
unlawfully and feloniously, induce and offer a sum
of money as consideration or prize to said
accused Mario Nemenio y delos Santos and
Salim Doe to kill her said lawfully wedded
husband Eduardo Pimentel y Orario, and because
and on account of said promised consideration or
prize which was accepted, the said accused Mario
Nemenio y delos Santos and Salim Doe, did then
and there, willfully and feloniously assault, attack
and stab with a knife with which they were
conveniently provided, the person of said Eduardo

Pimentel y Orario, thereby inflicting upon the latter

mortal wound which directly caused his death;
that the above-named accused Moises Andaya y
Julkanain although without having participated
directly in the commission of the offense abovedescribed, took part prior to its commission by
then and there acting as the contact man in the
execution of their plot to kill said Eduardo
Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her
counsel, moved and was granted a separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos
Santos, assisted by his counsel de oficio, entered on arraignment
a plea of guilty. Respondent judge thereafter rendered judgment
convicting accused Mario Nemenio y delos Santos of murder
qualified by the circumstance of prize and reward-and not of
parricide as charged in the information; because he "... had no
relation whatsoever to the deceased Eduardo Pimentel ..." and
appreciating the mitigating circumstances of voluntary plea of
guilty and lack of instruction and education, imposed on him the
indeterminate penalty of eight (8) years of prision mayor as the
minimum, to fourteen (14) years and eight (8) months of reclusion
temporal as the maximum; to indemnify the heirs of the deceased
Eduardo Pimentel the amount of P12,000.00 and to pay onefourth () of the costs of the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario
Nemenio y delos Santos offered to testify against his co-accused,
herein private respondent, in her separate trial earlier granted by
the respondent judge in the same criminal case, now numbered
750. Allowed, he testified as prosecution witness on February 28,

March 6, and March 22, 1978 and as summarized by the

petitioner, his testimony on direct examination contained in
seventy-six (76) pages of transcripts of stenographic notes (pp.
21-44, 57-64, rec.), is to the effect "...that he and Salim Doe were
hired by respondent Pilar Angeles de Pimentel, for the
consideration of P3,000.00 to kill Eduardo Pimentel, husband of
respondent Pilar Angeles de Pimentel, in the evening of
September 6, 1977, in the latter's residence in Zamboanga City,
and that it was respondent Pilar Angeles de Pimentel herself who
actually pointed out the victim Eduardo Pimentel to the witness,
who then stabbed the said victim to death...That he did not know
the Identity of the victim Eduardo Pimentel at the time of the
stabbing in the evening of September 6, 1977. He was guided
solely by respondent Pilar Angeles de Pimentel, who pointed out
her victim spouse to him ..." (allegation No. 4, petition, pp. 4-5,
After the prosecution had terminated on March 22, 1978 the
direct examination of its witness Mario Nemenio y delos Santos,
counsel for private respondent moved for the holding in abeyance
of the cross-examination of the said prosecution witness until
after he (counsel) shall have been furnished with the transcripts
of the stenographic notes of the direct examination of said
prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.);
allegation No. 5, petition, p. 5, rec.). The same was granted by
the respondent judge who ordered the resumption of the hearing
on April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to
appear because he was not served with a subpoena (p. 108,
rec.). Consequently, the hearing was reset for June 7, 1978 (ibid.)

On June 7, 1978, counsel for private respondent commenced his

cross- examination of prosecution witness Mario Nemenio y delos
Santos, which cross-examination however was not completed on
that session for lack of material time, thus:
I reserve my right to cross-examine the witness
Reservation to continue the cross-examination is
ORDER: For lack of material time, as prayed for
and upon agreement of the parties today's
hearing is hereby adjourned and to be resumed
on July 3, 1978 at 8:30 o'clock in the morning (p.
84, rec.).
According to the petition, the uncompleted cross-examination
reduced in fifty-three (53) pages of transcripts of stenographic
notes (pp. 65-84, rec.) had already "... touched on the conspiracy
existing among Salim Doe, witness Mario Nemenio and
respondent Pilar Angeles de Pimentel to kill Eduardo Pimentel, in
the latter's residence in Zamboanga City in the evening of
September 6, 1977, and also on the actual stabbing by witness
Mario Nemenio of the victim Eduardo Pimentel who was pointed
out to the witness-killer by his wife, respondent Pilar Angeles de
Pimentel ..." (p. 7, rec.). This is not disputed by private
Continuation of the cross-examination was, as aforestated, set for
July 3, 1978 at 8:30 o'clock in the morning.

However, prosecution witness Mario Nemenio y delos Santos

was shot dead by the Integrated National Police patrols on June
21, 1978 while allegedly escaping from the San Ramon Prison
and Penal Farm, Zamboanga City, where he was then serving his
sentence. Consequently, the completion of his cross-examination
became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the
defense for the striking out of the deceased witness's testimony,
filed with the respondent court a motion praying for a ruling on the
admissibility of the testimony of deceased witness Mario Nemenio
y delos Santos.
On August 4, 1978, respondent judge issued an order declaring
as inadmissible the entire testimony of the deceased witness
Mario Nemenio y delos Santos on the principal ground "... that
the defense was not able to complete its cross-examination of
said witness ...", relying on the case of Ortigas, Jr. vs. Lufthansa,
etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on December 4,
1978, after considering private respondent's comment as well as
those of the Solicitor General and of the respondent judge who
was required to file one. On even date, WE likewise issued a
temporary restraining order "... effective immediately and until
further orders from this Court enjoining respondent District Judge
from continuing with the trial of Criminal Case No. 750 (1742)
entitled People of the Philippines, plaintiff, versus Pilar Angeles
de Pimentel, accused, in the Court of First Instance of
Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his
discretion in ruling as inadmissible the testimony of prosecution
witness Mario Nemenio y delos Santos.

WE agree.
1. The constitutional right of confrontation, which guarantees to
the accused the right to cross-examine the witnesses for the
prosecution, is one of the most basic rights of an accused person
under our system of justice. It is a fundamental right which is part
of due process not only in criminal proceedings but also in civil
proceedings as well as in proceedings in administrative tribunals
with quasi-judicial powers (Savory Luncheonette vs. Lakas
Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973
Constitutions secured it, thus: "In all criminal prosecutions, the
accused ... shall enjoy the right ... to meet the witnesses face to
face ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution;
Section 17, Art. III, 1935 Constitution). Echoing the same
guarantee, Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant shall have
the right to be confronted at the trial by, and to cross- examine the
witnesses against him. Constitutional confrontation requirements
apply specifically to criminal proceedings and have been held to
have two purposes; first and primarily, to secure the opportunity
of cross-examination, and secondarily, to obtain the benefit of the
moral impact of the courtroom atmosphere as it affects the
witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it
insures that the witness will give his testimony under oath, thus
deterring lying by the threat of perjury charge; it forces the
witness to submit to cross-examination, a valuable instrument in
exposing falsehood and bringing out the truth; and it enables the
court to observe the demeanor of the witness and assess his
credibility (California v. Green, 339 U.S. 157 [1970]).

2. But while the right to confrontation and cross-examination is a

fundamental right, WE have ruled that the same can be waived
expressly or implied by conduct amounting to a renunciation of
the right of cross-examination (Savory Luncheonettee vs. Lakas
ng Manggagawang Pilipino, et al., supra, p. 259, citing U.S. v.
Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56 SCRA 84,
91 [19741). The conduct of a party which may be construed as a
implied waiver of the right to cross-examine may take various
forms. But the common basic principles underlying the application
of the rule on implied waiver is that the party was given the
opportunity to confront and cross-examination an opposing
witness but failed to take advantage of it for reasons attributable
to himself alone. Thus, where a party has had the opportunity to
cross-examine an opposing witness but failed to avail himself of
it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be
received or allowed to remain in the record (Savory Luncheonette
vs. Lakas ng Maggagawang Pilipino, et al., supra, citing
Francisco, Revised Rules of Court, Vol. on Evidence, p. 853, in
turn citing People vs. Cole, 43 N.Y. 508-512 and Bradley vs.
Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot
be done or completed due to causes attributable to the party
offering the witness, as was the situation in the Lufthansa
German Airlines case (64 SCRA 610 [1975]) relied upon by
respondent judge, the uncompleted testimony is thereby rendered
incompetent and inadmissible in evidence. WE emphasized in the
said case that "[T]he right of a party to cross-examine the witness
of his adversary is invaluable as it is inviolable in civil cases, no
less than the right of the accused in criminal cases. The express
recognition of such right of the accused in the Constitution does
not render the right of parties in civil cases less constitutionally
based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate

supervision by the judge in order to avoid unnecessary delays on

account of its being unduly protracted and to needed injunctions
protective of the right of the witness against self-incrimination and
oppressive and unwarranted harassment and embarrassment, a
party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such crossexamination has been finished, the testimony of the witness
cannot be considered as complete and may not, therefore be
allowed to form part of the evidence to be considered by the court
in deciding the case" (p. 637). However, WE likewise therein
emphasized that where the right to cross examine is lost wholly or
in part through the fault of the cross-examiner, then the testimony
on direct examination may be taken into account; but when crossexamination is not and cannot be done or completed due to
causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of
witness on the admissibility in evidence of his testimony on direct
examination has been extensively discussed thus: "As a general
rule, the testimony of a witness, given on direct examination,
should be stricken where there is not an adequate opportunity for
cross-examination, as where the witness by reason of his death,
illness, or absence cannot be subjected to cross-examination.
Although the contrary has been held (Scott v. McCann, 24 A. 536,
76 Md. 47), the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate
opportunity for cross-examination (Nehring v. Smith, 49 N.W. 2d
831, 243 Iowa 225), as where the party against whom he testified
is, through no fault of his own, deprived of the right to crossexamine him by reason of his death (Henderson v. Twin Falls
County 80 P. 2d 801, 59 Idaho 97; Twin Falls County, State of
Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358),
or as a result of the illness of the witness or absence, or a mistrial
ordered. The direct testimony of a witness who dies before

conclusion of the cross-examination can be stricken only insofar

as not covered by the cross-examination (Curtice v. West, 2 NYS
507, 50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696),
and absence of a witness is not enough to warrant striking his
testimony for failure to appear for further cross-examination
where the witness has already been sufficiently crossexamined (Lew Choy v. Lim Sing 216 P. 888, 125 Wash 631), or
the matter on which further cross-examination is sought is not in
controversy (supra). It has been held that a referee has no power
to strike the examination of a witness on his failure to appear for
cross-examination where a good excuse is given (In re Crooks,
23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a crossexamination without fault upon his part, as in the case of the
illness or death of a witness after direct examination, it is
generally held that he is entitled to have the direct testimony
stricken from the record. This doctrine rests on the common law
rule that no evidence should be admitted but what was or might
be under the examination of both parties, and
that exparte statements are too uncertain and unreliable to be
considered in the investigation of controverted facts (Wray vs.
State, 154 Ala 36, 45 So 697; People vs. Manchetti, 29 Cal. 2d
452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del
304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d
831; Citizens Bank & Trust Co. vs. Reid Motor Co. 216 NC 432, 5
SE 2d 318). It has been held, however, that the trial court did not
abuse its discretion in refusing to discharge the jury where the
state witness collapsed before cross- examination was
completed, it being shown that no motion to strike the testimony
was made, that it was not indicated what further information was
sought to be produced by further cross-examination, and that the
witness' testimony was largely cumulative (Banks vs,
Commonwealth, 312 Ky 297, 227 SW 2d 426)" [81 Am Jur 2d

4. Wigmore, eminent authority on evidence, opined that:

xxx xxx xxx
... where the death or illness prevents crossexamination under such circumstances that no
responsibility of any sort can be attributed to
either the witness of his party, it seems harsh
measure to strike out all that has been obtained
on the direct examination. Principle requires in
strictness nothing less. But the true solution would
be to avoid any inflexible rule, and to leave it to
the trial judge to admit the direct examination so
far as the loss of cross-examination can be shown
to him to be not in that instance a material loss.
Courts differ in their treatment of this difficult
situation; except that by general concession a
cross-examination begun but unfinished sufices if
its purposes have been substantially
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
1. Respondent judge's full reliance on the Lufthansa German
Airlines case cannot be sustained. To be sure, while the crossexamination of the witness in the aforesaid Lufthansa case and
that of the witness in the present action were both uncompleted,
the causes thereof were different in that while in the present case
it was the death of the witness, in the Lufthansa case, it was the
unjustified and unexplained failure of Lufthansa to present its
witness on the scheduled date for his cross-examination which

had already been preceded by several postponements initiated

by Lufthansa itself, thus depriving the other party the opportunity
to complete the cross-examination of said witness. Consequently,
this Court therein correctly ruled as inadmissible the testimony of
the said witness on the principle that "... when cross-examination
is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted
testimony is thereby rendered incompetent ..." (supra, at p. 636).
As clear as day, the Lufthansa ruling therefore applies only if
there is a finding that the cause for non-completion of the crossexamination of a witness was attributable to the very party
offering the said witness. Consequently, the same is inapplicable
to the instant action as the cause for the non-completion of the
cross-examination of petitioner's witness was a fortuitous event
as he was killed, as per the pleadings submitted in this action, by
the law enforcers (Integrated National Police Patrols) after his
escape from prison. As a matter of fact, respondent judge, in his
questioned order, did not lay any basis for the application of the
Lufthansa ruling as he failed to make any finding that the noncompletion was due to petitioner, the party offering the witness,
whose testimony he declared as inadmissible in evidence. A
reading of the questioned order reveals that respondent judge
ruled as inadmissible said questioned testimony mainly because
private respondent can no longer finish her cross-examination;
hence incomplete. However, private respondent advanced in this
action the cavalier theory that the failure of her counsel to
complete his cross-examination of petitioner's witness was due to
the fault of or was attributable to the petitioner, People of the
Philippines, because it was the very agents of State who killed its
own witness; hence, making the questioned testimony of
petitioner's witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There
was no finding nor any showing as the same is farfetched or
inconceivable that the killing of the witness of petitioner by its own

agents was ill-motivated. The prosecution did not order the

shooting of the government witness. He was shot while escaping
from prison. It is petitioner's cause which will possibly suffer from
said death; not the cause of private respondent. It may be true
that the escape of the said witness and his consequent death
may be attributable to the negligence of petitioner's agents; but
such negligence may not bind the petitioner as to pre-judicially
affect its cause and interest the prosecution of criminal
offenses by reason of the generally accepted principle that the
State is not bound by the negligence or tortious acts of its agents.
As the cause of non-completion was, as aforesaid, beyond the
control of the prosecution, respondent judge's questioned order
cannot be sustained on the basis of the Lufthansa ruling which,
as aforestated, was principally anchored on the finding that the
cause of the non-completion of the cross-examination of the
therein witness was attributable to the very party offering him as a
2. On the other hand, WE find no merit in petitioner's contention
that the testimony of its deceased witness is admissible on the
ground that private respondent had waived her right to crossexamine the witness and that the cause of non-completion was
attributable to said private respondent. As correctly pointed out by
private respondent and sustained by respondent judge, petitioner
is not justified in attributing fault to her (private respondent) and in
contending that she is deemed to have partly lost already the
right of cross-examination by not availing of the right to crossexamine the witness Mario Nemenio on March 22, 1978 or right
after his direct examination was closed and delaying until the
lapse of two and a half (2) months thereafter before making
such cross-examination; because while it is true that her counsel
did not immediately start with his cross-examination of the
deceased witness on March 22, 1978, he did avail, however, of
such right on the same day by initially obtaining an opportunity to
make preparations for an effective exercise thereof considering

the nature of the case a capital one and the length of the
direct examination; three sittings on three different dates or on
February 28, 1978, March 6, 1978 and March 22, 1978. Hence,
there was no waiver of her right of cross-examination. Moreover,
the deferment of the cross-examination of the witness requested
by private respondent on March 22, 1978 was approved by
respondent judge without any objection on the part of petitioner
(pp. 45, 46, 64, rec.). And on the date for the cross-examination
of the witness Mario Nemenio or on April 19, 1978, counsel for
private respondent failed to cross-examine the said witness not of
his own design but because said witness failed to appear on that
date for the reason that due to the oversight of the court's
personnel the subpoena for said witness was not served on him
at the San Ramon Prison and Penal Farm (pp. 90, 108, rec.). And
respondent judge had to re-set the hearing for the crossexamination of the witness by the private respondent only to June
7, 1978 because of the fact that respondent judge took, with the
approval of the Supreme Court, his summer vacation the whole
month of May, 1978.
It is thus apparent that no fault can be imputed to the private
respondent for the length of time that elapsed before her counsel
was able to commence his cross-examination of the witness. And
private respondent's counsel was not able to complete his crossexamination of the witness on June 7, 1978 for lack of material
time by reason of which and upon agreement of the parties the
hearing was adjourned and ordered resumed on July 3, 1978 (p.
84, rec.).

It appears, therefore, that the situation is one whereby the cause

of non-completion of the cross-examination of the deceased
witness was attributed neither to the fault of petitioner nor the
private respondent. Consequently, the admissibility or
inadmissibility of the testimony of the said witness cannot be
resolved on the basis of the rule enunciated in the Lufthansa
There is merit in the contention of the petitioner that the
questioned testimony of its deceased witness is admissible in
evidence because private respondent's counsel had already "...
rigorously and extensively cross-examined witness Mario
Nemenio on all essential elements of the crime charged
(parricide), all of which have been testified upon by said witness
in his direct examination-in-chief, and consequently, the crossexamination-in- chief, has already been concluded."
The cross-examination was completed insofar as the essential
elements of the crime charged parricide, fact ofkilling-is
concerned. What remained was merely the cross-examination
regarding the price or reward, which is not an element of
parricide, but only an aggravating circumstance (par. 11, Art. 14,
Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide
under Article 246 of the Revised Penal Code.
The elements of the crime of Parricide are that a
person was killed; that the killing was intentionally
caused by the accused; and that the victim is a
parent or child, whether legitimate or illegitimate,

or the lawful spouse, or legitimate ascendant or

descendant of the accused. Once these facts are
established beyond reasonable doubt, conviction
is warranted (See Aquino, The Revised Penal
Code, 1961 Ed., Vol. II, p. 1171).
The deceased Eduardo Pimentel has been
sufficiently shown to be the lawful husband of
private respondent Pilar Pimentel by means of the
marriage contract executed between them on May
18, 1971 ... marked as Exhibit 'R' for the
prosecution ...
The cross-examination of witness Mario Nemenio
by the counsel for private respondent on June 7,
1978 touched on the conspiracy, and agreement,
existing among Salim Doe, witness Mario
Nemenio and private respondent Pilar Pimentel to
kill Eduardo Pimentel, in the latter's residence in
Zamboanga City in the evening of September 6,
1977, and also on the actual stabbing by witness
Mario Nemenio of the victim Eduardo Pimentel
who was pointed out to the witness-killer by his
wife, the private respondent Pilar Pimentel
herself... The matter of consideration or price of
P3,000.00, which both the public and private
respondents maintain was not touched in the
cross-examination of witness Mario Nemenio, is
not an essential element of the crime of parricide.
Price or consideration is merely an aggravating
circumstance of the crime charged, not an
essential element thereof. The failure to touch the
same in the cross-examination would not at all
affect the existence of the crime of parricide.
Furthermore, there is no showing or even the

slightest indication that the witness or his

testimony would be discredited if he was crossexamined on the promised consideration. The
probability is rather very great that the witness
would only have confirmed the existence of the
promised consideration were he cross-examined
on the same.
From the foregoing discussion, it is submitted that
the rigorous and searching cross-examination of
witness Mario Nemenio on June 7, 1978,
practically concluded already the crossexamination-in-chief, or has already substantially
accomplished the purpose of the crossexamination, and therefore, the failure to pursue
the privilege of further cross-examination, would
not adversely affect the admissibility of the direct
testimony of said witness anymore (pp. 159162,
Private respondent did not dwell on the aforesaid points in her
Because the cross-examination made by the counsel of private
respondent of the deceased witness was extensive and already
covered the subject matter of his direct testimony as state witness
relating to the essential elements of the crime of parricide, and
what remained for further cross-examination is the matter of price
or reward allegedly paid by private respondent for the
commission of the crime, which is merely an aggravating
circumstance and does not affect the existence of the offense
charged, the respondent judge gravely abused his discretion in
declaring as entirely inadmissible the testimony of the state
witness who died through no fault of any of the parties before his
cross-examination could be finished.



Two basic issues are raised for Our resolution in this petition for
certiorari and mandamus. The first is whether or not a court loses
jurisdiction over an accused who after being arraigned, escapes
from the custody of the law. The other issue is whether or not
under Section 19, Article IV of the 1973 Constitution, an accused
who has been duly tried inabsentia retains his right to present
evidence on his own behalf and to confront and cross-examine
witnesses who testified against him.
The following facts are not in dispute:
On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula,
Fernando Cargando, Rogelio Baguio and the herein private
respondent Teodoro de la Vega Jr., were charged with the crime
of murder.
On August 22, 1973 all the above-named. accused were
arraigned and each of them pleaded not guilty to the crime
charged. Following the arraignment, the respondent judge, Hon.
Ramon E. Nazareno, set the hearing of the case for September
18, 1973 at 1:00 o'clock in the afternoon. All the acused including
private respondent, were duly informed of this.
Before the scheduled date of the first hearing the private
respondent escaped from his detention center and on the said
date, failed to appear in court. This prompted the fiscals handling
the case (the petitioners herein) to file a motion with the lower
court to proceed with the hearing of the case against all the
accused praying that private respondent de la Vega, Jr. be tried in
absentia invoking the application of Section 19, Article IV of the
1973 Constitution which provides:

Gimenez v nazareno

SEC. 19. In all criminal prosecution, the accused

shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature
and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to the attendance of witnesses and the
production of evidence in his behalf. However,
after arraignment trial may proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustified. (Emphasis
supplied.) *
Pursuant to the above-written provision, the lower court
proceeded with the trial of the case but nevertheless gave the
private respondent the opportunity to take the witness stand the
moment he shows up in court. 1
After due trial, or on November 6,1973, the lower court rendered
a decision dismissing the case against the five accused while
holding in abeyance the proceedings against the private
respondent. The dispositive portion is as follows:
WHEREFORE, insofar as the accused Samson
Suan Alex Potot, Rogelio Mula Fernando
Cargando and Rogelio Baguio are concerned, this
case is hereby dismissed. The City Warden of
Lapu-Lapu City is hereby ordered to release these
accused if they are no longer serving sentence of
conviction involving other crimes.
The proceedings in this case against the accused
Teodoro de la Vega, Jr. who has escaped on

August 30,1973 shall remain pending, without

prejudice on the part of the said accused to crossexamine the witnesses for the prosecution and to
present his defense whenever the court acquires
back the jurisdiction over his person. 2
On November 16,1973 the petitioners filed a Motion for
Reconsideration questioning the above-quoted dispositive portion
on the ground that it will render nugatory the constitutional
provision on "trial in absentia" cited earlier. However, this was
denied by the lower court in an Order dated November 22, 1973.
Hence, this petition.
The respondent court, in its Order denying the Motion for
Reconsideration filed by the herein petitioners, expressed the
opinion that under Section 19, Article IV of the 1973 Constitution,
the private respondent, who was tried in absentia, did not lose his
right to cross-examine the witnesses for the prosecution and
present his evidence. 3 The reasoning of the said court is that under
the same provision, all accused should be presumed
innocent. 4 Furthermore the lower court maintains that jurisdiction
over private respondent de la Vega, Jr. was lost when he escaped
and that his right to cross-examine and present evidence must not
be denied him once jurisdiction over his person is reacquired. 5
We disagree.
First of all, it is not disputed that the lower court acquired
jurisdiction over the person of the accused-private respondent
when he appeared during the arraignment on August 22,1973
and pleaded not guilty to the crime charged. In cases criminal,
jurisdiction over the person of the accused is acquired either by
his arrest for voluntary appearance in court. Such voluntary

appearance is accomplished by appearing for arraignment as

what accused-private respondent did in this case.
But the question is this was that jurisdiction lost when the
accused escaped from the custody of the law and failed to appear
during the trial? We answer this question in the negative. As We
have consistently ruled in several earlier cases,6 jurisdiction once
acquired is not lost upon the instance of parties but continues
until the case is terminated.
To capsulize the foregoing discussion, suffice it to say that where
the accused appears at the arraignment and pleads not guilty to
the crime charged, jurisdiction is acquired by the court over his
person and this continues until the termination of the case,
notwithstanding his escape from the custody of the law.
Going to the second part of Section 19, Article IV of the 1973
Constitution aforecited a "trial in absentia"may be had when the
following requisites are present: (1) that there has been an
arraignment; (2) that the accused has been notified; and (3) that
he fails to appear and his failure to do so is unjustified.
In this case, all the above conditions were attendant calling for a
trial in absentia. As the facts show, the private respondent was
arraigned on August 22, 1973 and in the said arraignment he
pleaded not guilty. He was also informed of the scheduled
hearings set on September 18 and 19, 1973 and this is evidenced
by his signature on the notice issued by the lower Court. 7 It was
also proved by a certified copy of the Police Blotter 8 that private
respondent escaped from his detention center. No explanation for his
failure to appear in court in any of the scheduled hearings was given.
Even the trial court considered his absence unjustified.
The lower court in accordance with the aforestated provisions of
the 1973 Constitution, correctly proceeded with the reception of

the evidence of the prosecution and the other accused in the

absence of private respondent, but it erred when it suspended the
proceedings as to the private respondent and rendered a decision
as to the other accused only.
Upon the termination of a trial in absentia, the court has the duty
to rule upon the evidence presented in court. The court need not
wait for the time until the accused who who escape from custody
finally decides to appear in court to present his evidence and
moss e the witnesses against him. To allow the delay of
proceedings for this purpose is to render ineffective the
constitutional provision on trial in absentia. As it has been aptly
. . . The Constitutional Convention felt the need for
such a provision as there were quite a number of
reported instances where the proceedings against
a defendant had to be stayed indefinitely because
of his non- appearance. What the Constitution
guarantees him is a fair trial, not continued
enjoyment of his freedom even if his guilt could be
proved. With the categorical statement in the
fundamental law that his absence cannot justify a
delay provided that he has been duly notified and
his failure to appear is unjustified, such an abuse
could be remedied. That is the way it should be,
for both society and the offended party have a
legitimate interest in seeing to it that crime should
not go unpunished. 9
The contention of the respondent judge that the right of the
accused to be presumed innocent will be violated if a judgment is
rendered as to him is untenable. He is still presumed innocent. A
judgment of conviction must still be based upon the evidence
presented in court. Such evidence must prove him guilty beyond

reasonable doubt. Also, there can be no violation of due process

since the accused was given the opportunity to be heard.
Nor can it be said that an escapee who has been tried in
absentia retains his rights to cross-examine and to present
evidence on his behalf. By his failure to appear during the trial of
which he had notice, he virtually waived these rights. This Court
has consistently held that the right of the accused to confrontation
and cross-examination of witnesses is a personal right and may
be waived. 10 In the same vein, his right to present evidence on his
behalf, a right given to him for his own benefit and protection, may be
waived by him.

WHEREFORE, in view of the foregoing, the judgment of the trial

court in Criminal Case No. 112-L in so far as it suspends the
proceedings against the herein private respondent Teodoro de la
Vega, Jr. is reversed and set aside. The respondent judge is
hereby directed to render judgment upon the innocence or guilt of
the herein private respondent Teodoro de la Vega, Jr. in
accordance with the evidence adduced and the applicable law.
No pronouncement as to costs.

Finally, at this point, We note that Our pronouncement in this

case is buttressed by the provisions of the 1985 Rules on
Criminal Procedure, particularly Section 1 (c) of Rule 115 which
clearly reflects the intention of the framers of our Constitution, to
... The absence of the accused without any
justifiable cause at the trial on a particular date of
which he had notice shall be considered a waiver
of his right to be present during that trial. When an
accused under custody had been notified of the
date of the trail and escapes, he shall be deemed
to have waived his right to be present on said
date and on all subsequent trial dates until
custody in regained....
Accordingly, it is Our considered opinion, and We so hold, that an
escapee who has been duly tried in absentiawaives his right to
present evidence on his own behalf and to confront and crossexamine witnesses who testified against him. 11


Brothers Raymond and Reynaldo Manalo were abducted by military
men belonging to the CAFGU on the suspicion that they were
members and supporters of the NPA. After 18 months of detention
and torture, the brothers escaped on August 13, 2007.
Ten days after their escape, they filed a Petition for Prohibition,
Injunction, and Temporary Restraining Order to stop the military
officers and agents from depriving them of their right to liberty and
other basic rights. While the said case was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. The Manalos
subsequently filed a manifestation and omnibus motion to treat
their existing petition as amparo petition.

On December 26, 2007, the Court of Appeals granted the privilege

of the writ of amparo. The CA ordered the Secretary of National
Defense and the Chief of Staff of the AFP to furnish the Manalos and
the court with all official and unofficial investigation reports as to
the Manalos custody, confirm the present places of official
assignment of two military officials involved, and produce all
medical reports and records of the Manalo brothers while under
military custody. The Secretary of National Defense and the Chief of
Staff of the AFP appealed to the SC seeking to reverse and set aside
the decision promulgated by the CA.

motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the moving
party, of any designated documents, papers, books of accounts,
letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control. (GR No.
180906, The Secretary of National Defense v. Manalo, October 7, 2008)

In upholding the CA decision, the Supreme Court ruled that there is a
continuing violation of the Manalos right to security. xxx The Writ of
Amparo is the most potent remedy available to any person whose right
to life, liberty, and security has been violated or is threatened with
violation by an unlawful act or omission by public officials or
employees and by private individuals or entities. xxx Understandably,
since their escape, the Manalos have been under concealment and
protection by private citizens because of the threat to their life,
liberty, and security. The circumstances of respondents abduction,
detention, torture and escape reasonably support a conclusion that
there is an apparent threat that they will again be abducted, tortured,
and this time, even executed. These constitute threats to their liberty,
security, and life, actionable through a petition for a writ of amparo,
the Court explained. (GR No. 180906, The Secretary of National
Defense v. Manalo, October 7, 2008)
Distinguish the production order under the Rule on the Writ of
Amparo from a search warrant.
The production order under the Rule on the Writ of Amparo should not
be confused with a search warrant for law enforcement under Art. III,
sec. 2 of the 1987 Constitution. It said that the production order
should be likened to the production of documents or things under sec.
1, Rule 27 of the Rules of Civil Procedure which states that upon

Razon v Tagitis

We review in this petition for review on certiorari the

decision dated March 7, 2008 of the Court of Appeals (CA) in
C.A-G.R. AMPARO No. 00009. This CA decision confirmed the
enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of
his wife, Mary Jean B. Tagitis (respondent). The dispositive
portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby

GRANTED. The Court hereby FINDS that this is an "enforced
disappearance" within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of
the writ of amparo are hereby extended to Engr. Morced
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL,
Chief, Criminal Investigation and Detention Group (CIDG)
who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM
TAGITIS, and (c) respondent SR. SUPERINTENDENT
LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are
hereby DIRECTED to exert extraordinary diligence and
efforts, not only to protect the life, liberty and security of
Engr. Morced Tagitis, but also to extend the privileges of the
writ of amparo to Engr. Morced Tagitis and his family, and to
submit a monthly report of their actions to this Court, as a
way of PERIODIC REVIEW to enable this Court to monitor the
action of respondents.
This amparo case is hereby DISMISSED as to respondent LT.
GEN. ALEXANDER YANO, Commanding General, Philippine
Army, and as to respondent GEN. RUBEN RAFAEL, Chief AntiTerror Task Force Comet, Zamboanga City, both being with
the military, which is a separate and distinct organization
from the police and the CIDG, in terms of operations, chain
of command and budget.

This Decision reflects the nature of the Writ of Amparo a

protective remedy against violations or threats of violation
against the rights to life, liberty and security. It embodies, as
a remedy, the courts directive to police agencies to
undertake specified courses of action to address the
disappearance of an individual, in this case, Engr. Morced N.
Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate
remedies to address the disappearance.
Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced
disappearance, as a measure of the remedies this Court
shall craft, among them, the directive to file the appropriate
criminal and civil cases against the responsible parties in
the proper courts.
Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing
the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating
to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge,
the burden of extraordinary diligence in the investigation of
the enforced disappearance. In all these cases, the issuance
of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim
is preserved and his liberty and security are restored.

The established facts show that Tagitis, a consultant for the
World Bank and the Senior Honorary Counselor for the
Islamic Development Bank (IDB) Scholarship Programme,
was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in
the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY
Pension House. Tagitis asked Kunnong to buy him a boat
ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no
longer around. The receptionist related that Tagitis went out
to buy food at around 12:30 in the afternoon and even left
his room key with the desk. Kunnong looked for Tagitis and
even sent a text message to the latters Manila-based
secretary who did not know of Tagitis whereabouts and
activities either; she advised Kunnong to simply wait.
On November 4, 2007, Kunnong and Muhammad
Abdulnazeir N. Matli, a UP professor of Muslim studies and
Tagitis fellow student counselor at the IDB, reported Tagitis
disappearance to the Jolo Police Station. On November 7,
2007, Kunnong executed a sworn affidavit attesting to what
he knew of the circumstances surrounding Tagitis
More than a month later (on December 28, 2007), Mary Jean
Tagitis filed a Petition for the Writ of Amparo (petition) with
the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.The
petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I.
Razon, Chief, Philippine National Police (PNP); Gen. Edgardo
M. Doromal, Chief, Criminal Investigation and Detention

Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police

Anti-Crime and Emergency Response; Gen. Joel Goltiao,
Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief,
Anti-Terror Task Force Comet.
Mary Jean said in her statement that she approached some
of her co-employees with the Land Bank in Digos branch,
Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them
find/locate the whereabouts of her husband. All of her
efforts did not produce any positive results except the
information from persons in the military who do not want to
be identified that Engr. Tagitis is in the hands of the
uniformed men. According to reliable information she
received, subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis
with the different terrorist groups particularly the Jemaah
Islamiyah or JI.
She then filed her complaint with the PNP Police Station in
the ARMM in Cotobato and in Jolo, seeking their help to find
her husband, but was told of an intriguing tale by the police
that her husband was not missing but was with another
woman having good time somewhere, which is a clear
indication of the refusal of the PNP to help and provide
police assistance in locating her missing husband.
Heeding an advise of one police officer, she went to the
different police headquarters namely Police Headquarters in
Cotabato City, Davao City, Zamboanga City and eventually
in the National Headquarters in Camp Crame in Quezon City

but her efforts produced no positive results. These trips

exhausted all of her resources which pressed her to ask for
financial help from friends and relatives.
She has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, she has no
other plain, speedy and adequate remedy to protect and get
the release of her husband, Engr. Morced Tagitis, from the
illegal clutches of his captors, their intelligence operatives
and the like which are in total violation of the subjects
human and constitutional rights, except the issuance of
On the same day the petition was filed, the CA immediately
issued the Writ of Amparo, set the case for hearing on
January 7, 2008, and directed the petitioners to file their
verified return within seventy-two (72) hours from service of
the writ.
In their verified Return filed during the hearing of January
27, 2008, the petitioners denied any involvement in or
knowledge of Tagitis alleged abduction. They argued that
the allegations of the petition were incomplete and did not
constitute a cause of action against them; were baseless, or
at best speculative; and were merely based on hearsay
evidence. In addition, they all claimed that they exhausted
all means, particularly taking pro-active measures to
investigate, search and locate Tagitis and to apprehend the
persons responsible for his disappearance.
On March 7, 2008, the CA issued its decision confirming that
the disappearance of Tagitis was an "enforced

disappearance" under the United Nations (UN) Declaration

on the Protection of All Persons from Enforced
Disappearances. The CA held that "raw reports" from an
"asset" carried "great weight" in the intelligence world. It
also labeled as "suspect" Col. Kasims subsequent and
belated retraction of his statement that the military, the
police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable"
and "a bedlam of speculation" police theories painting the
disappearance as "intentional" on the part of Tagitis. He had
no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money
entrusted to him; no student of the IDB scholarship program
ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police
theory that Tagitis was "trying to escape from the clutches
of his second wife," on the basis of the respondents
testimony that Tagitis was a Muslim who could have many
wives under the Muslim faith, and that there was "no issue"
at all when the latter divorced his first wife in order to marry
the second. Finally, the CA also ruled out kidnapping for
ransom by the Abu Sayyaf or by the ARMM paramilitary as
the cause for Tagitis disappearance, since the respondent,
the police and the military noted that there was no
acknowledgement of Tagitis abduction or demand for
payment of ransom the usual modus operandi of these
terrorist groups.
Based on these considerations, the CA thus extended the
privilege of the writ to Tagitis and his family, and directed
the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I.
Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina

to exert extraordinary diligence and efforts to protect the

life, liberty and security of Tagitis, with the obligation to
provide monthly reports of their actions to the CA. At the
same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and
Gen. Ruben Rafael, based on the finding that it was PNPCIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the
CA decision, but the CA denied the motion in its Resolution
of April 9, 2008.
Whether or not the privilege of the Writ of Amparo should be
extended to Engr. Morced Tagitis.
The disappearance of Engr. Morced Tagitis is classified as an
enforced disappearance, thus the privilege of the Writ of
Amparo applies.
Under the UN Declaration enforced disappearance as "the
arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which
place such a person outside the protection of the law." Under
this definition, the elements that constitute enforced
disappearance are essentially fourfold:

(a) arrest, detention, abduction or any form of deprivation of

(b) carried out by agents of the State or persons or groups
of persons acting with the authorization, support or
acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person;
(d) placement of the disappeared person outside the
protection of the law.
There was no direct evidence indicating how the victim
actually disappeared. The direct evidence at hand only
shows that Tagitis went out of the ASY Pension House after
depositing his room key with the hotel desk and was never
seen nor heard of again. The undisputed conclusion,
however, from all concerned the petitioner, Tagitis
colleagues and even the police authorities is that Tagistis
disappeared under mysterious circumstances and was never
seen again.

A petition for the Writ of Amparo shall be signed and verified

and shall allege, among others (in terms of the portions the
petitioners cite):
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with violation
by an unlawful act or omission of the respondent,
and how such threat or violation is committed with
the attendant circumstances detailed in supporting
(d) The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the

manner and conduct of the investigation, together

with any report;(e) The actions and recourses taken by the
petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible
for the threat, act or omission.
The framers of the Amparo Rule never intended Section 5(c)
to be complete in every detail in stating the threatened or
actual violation of a victims rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary
details.76 In an Amparo petition, however, this requirement
must be read in light of the nature and purpose of the
proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how
the victim exactly disappeared, or who actually acted to
kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be
hidden or covered up by those who caused the
disappearance. In this type of situation, to require the level
of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make
this Rule a token gesture of judicial concern for violations of
the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading
the petition should be to determine whether it contains the
details available to the petitioner under the circumstances,
while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or
private party action. The petition should likewise be read in
its totality, rather than in terms of its isolated component

parts, to determine if the required elements namely, of the

disappearance, the State or private action, and the actual or
threatened violations of the rights to life, liberty or security
are present.
The properly pleaded ultimate facts within the pleaders
knowledge about Tagitis disappearance, the participation by
agents of the State in this disappearance, the failure of the
State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his
right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect
is its lack of supporting affidavit, as required by Section 5(c)
of the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement
for supporting affidavits, with the annotation that these can
be used as the affiants direct testimony. This requirement,
however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a
verified petition sufficiently detailing the facts relied upon,
the strict need for the sworn statement that an affidavit
represents is essentially fulfilled. We note that the failure to
attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified
in the CA hearings held on January 7 and 17 and February
18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be

The phenomenon of enforced disappearance arising from

State action first attracted notice in Adolf Hitlers Nact und
Nebel Erlass or Night and Fog Decree of December 7,
1941. The Third Reichs Night and Fog Program, a State
policy, was directed at persons in occupied territories
"endangering German security"; they were transported
secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect,
the policy prohibited government officials from providing
information about the fate of these targeted persons.
In the Philippines, enforced disappearances generally fall
within the first two categories, and 855 cases were recorded
during the period of martial law from 1972 until 1986. Of
this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C.
Aquinos term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of
this number, 407 remain missing, 108 surfaced alive and 97
were found dead. The number of enforced disappearances
dropped during former President Fidel V. Ramos term when
only 87 cases were reported, while the three-year term of
former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization,
reports that as of March 31, 2008, the records show that
there were a total of 193 victims of enforced disappearance
under incumbent President Gloria M. Arroyos
administration. The Commission on Human Rights records
show a total of 636 verified cases of enforced
disappearances from 1985 to 1993. Of this number, 406
remained missing, 92 surfaced alive, 62 were found dead,
and 76 still have undetermined status.Currently, the United

Nations Working Group on Enforced or Involuntary

Disappearance reports 619 outstanding cases of enforced or
involuntary disappearances covering the period December
1, 2007 to November 30, 2008.
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall
cover extralegal killings and enforced disappearances or
threats thereof."We note that although the writ specifically
covers "enforced disappearances," this concept is neither
defined nor penalized in this jurisdiction. The records of the
Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the
concept of enforced disappearance:
Justice Puno stated that, as the law now stands, extrajudicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the
component criminal acts undertaken to carry out these
killings and enforced disappearances and are now penalized
under the Revised Penal Code and special laws.
Although the Courts power is strictly procedural and as
such does not diminish, increase or modify substantive
rights, the legal protection that the Court can provide can be
very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced
disappearances. The Court, through its procedural rules, can
set the procedural standards and thereby directly compel
the public authorities to act on actual or threatened
violations of constitutional rights. To state the obvious,
judicial intervention can make a difference even if only

procedurally in a situation when the very same

investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.
The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and
investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are
less than what the individual situations require. The second
is to address the disappearance, so that the life of the victim
is preserved and his or her liberty and security restored. In
these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and
the whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her liberty
and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
During the International Convention for the Protection of All
Persons from Enforced Disappearance (in Paris, France on
February 6, 2007, "enforced disappearance" is considered
to be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which
place such a person outside the protection of the law.

In the recent case of Pharmaceutical and Health Care

Association of the Philippines v. Duque III, we held that:
Under the 1987 Constitution, international law can become
part of the sphere of domestic law either
by transformation or incorporation. The transformation
method requires that an international law be transformed
into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method
applies when, by mere constitutional declaration,
international law is deemed to have the force of
domestic law.
The right to security of person in this third sense is a
corollary of the policy that the State "guarantees full respect
for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of
order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these
rights especially when they are under threat.
Protection includes conducting effective
investigations, organization of the government
apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing
offenders to the bar of justice. The duty to
investigate must be undertaken in a serious
manner and not as a mere formality preordained to
be ineffective.
Evidentiary Difficulties Posed by the Unique Nature of
an Enforced Disappearance

The unique evidentiary difficulties presented by enforced

disappearance cases; these difficulties form part of the
setting that the implementation of the Amparo Rule shall
encounter. These difficulties largely arise because the State
itself the party whose involvement is alleged investigates
enforced disappearances. Past experiences in other
jurisdictions show that the evidentiary difficulties are
generally threefold.
First, there may be a deliberate concealment of the
identities of the direct perpetrators. In addition, there are
usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to
testify on the disappearance out of fear for their own lives.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance
Third is the element of denial; in many cases, the State
authorities deliberately deny that the enforced
disappearance ever occurred. "Deniability" is central to the
policy of enforced disappearances, as the absence of any
proven disappearance makes it easier to escape the
application of legal standards ensuring the victims human
Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
The remedy of the writ of amparo provides rapid judicial
relief as it partakes of a summary proceeding that requires

only substantial evidence to make the appropriate reliefs

available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of
evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive
We note in this regard that the use of flexibility in the
consideration of evidence is not at all novel in the Philippine
legal system. In child abuse cases, Section 28 of the
Rule on Examination of a Child Witness is expressly
recognized as an exception to the hearsay rule. This
Rule allows the admission of the hearsay testimony
of a child describing any act or attempted act of
sexual abuse in any criminal or non-criminal
proceeding, subject to certain prerequisites and the
right of cross-examination by the adverse party.


Based on these considerations, we conclude that Col.
Kasims disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and
the haphazard investigations cannot but point to this
conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not
been to deny what they already knew of the disappearance?
Would not an in-depth and thorough investigation that at
least credibly determined the fate of Tagitis be a feather in
the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and

developments, particularly the Kasim evidence, already

establish a concrete case of enforced disappearance that
the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted, evidence at hand
and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under
a background of consistent and unfounded government
denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law
a situation that will subsist unless this Court acts.
Given their mandates, the PNP and PNP-CIDG officials and
members were the ones who were remiss in their duties
when the government completely failed to exercise the


FACTS: The siblings of James Balao, and Longid

(petitioners), filed with the RTC of La Trinidad,

To fully enforce the Amparo remedy, we refer this case back

to the CA for appropriate proceedings directed at the
monitoring of the PNP and the PNP-CIDG investigations and
actions, and the validation of their results through hearings
the CA may deem appropriate to conduct.

Benguet a Petition for the Issuance of a Writ of

Amparo in favor of James Balao who was abducted
by unidentified armed men earlier. Named
respondents in the petition were then President
GMA, Exec Sec Eduardo Ermita, Defense Sec
Gilberto Teodoro, Jr., ILG Secretary Ronaldo
Puno, National Security Adviser (NSA) Norberto
Gonzales, AFP Chief of Staff Gen. Alexander .
Yano, PNP Police Director General Jesus Verzosa,
among others.

James M. Balao is a Psychology and Economics

the RTC issued the assailed judgment, disposing as

graduate of the UP-Baguio. In 1984, he was among


those who founded the Cordillera Peoples Alliance

(CPA), a coalition of NGOs working for the cause of
indigenous peoples in the Cordillera Region.

ISSUE a Writ of Amparo Ordering the respondents

to (a) disclose where James is detained or
confined, (b) to release James considering his

According to witnesses testimony, James was

unlawful detention since his abduction and (c) to

abducted by unidentified men, saying they were

cease and desist from further inflicting harm upon

policemen and were arresting him for a drugs case

his person; and

and then made to ride a white van.

DENY the issuance of INSPECTION ORDER,

petitioners prayed for the issuance of a writ of


amparo and likewise prayed for (1) an inspection

PROTECTION ORDER for failure of herein

order for the inspection of at least 11 military and

Petitioners to comply with the stringent provisions

police facilities which have been previously

on the Rule on the Writ of Amparo and

reported as detention centers for activists abducted

substantiate the same

by military and police operatives; (2) a production

order for all documents that contain evidence
relevant to the petition, particularly the Order of
Battle List and any record or dossier respondents
have on James; and (3) a witness protection order.

ISSUE: WON the totality of evidence satisfies the

degree of proof required by the Amparo Rule to
establish an enforced disappearance.

HELD: NO; The Rule on the Writ of Amparo was


promulgated on October 24, 2007 amidst rising

The trial court gave considerable weight to the

incidence of extralegal killings and enforced

discussion in the petition of briefing papers

disappearances. It was formulated in the exercise

supposedly obtained from the AFP indicating that

of this Courts expanded rule-making power for the

the anti-insurgency campaign of the military under

protection and enforcement of constitutional rights

the administration of President Arroyo included

enshrined in the 1987 Constitution, albeit limited

targeting of identified legal organizations under the

to these two situations. Extralegal killings refer

NDF, which included the CPA, and their members,

to killings committed without due process of law,

as enemies of the state.

i.e., without legal safeguards or judicial

proceedings. On the other hand, enforced
disappearances are attended by the following
characteristics: an arrest, detention, or abduction
of a person by a government official or organized
groups or private individuals acting with the direct

We hold that such documented practice of

targeting activists in the militarys counterinsurgency program by itself does not fulfill the
evidentiary standard provided in the Amparo Rule
to establish an enforced disappearance.

or indirect acquiescence of the government; the

In the case of Roxas v. Macapagal-Arroyo, the

refusal of the State to disclose the fate or

Court noted that the similarity between the

whereabouts of the person concerned or a refusal

circumstances attending a particular case of

to acknowledge the deprivation of liberty which

abduction with those surrounding previous

places such person outside the protection of law.

instances of enforced disappearances does not,

necessarily, carry sufficient weight to prove that

applicable to this jurisdiction on the theory that the

the government orchestrated such abduction.

command responsibility doctrine now constitutes a

Accordingly, the trial court in this case cannot

principle of international law or customary

simply infer government involvement in the

international law in accordance with the

abduction of James from past similar incidents in

incorporation clause of the Constitution. Still, it

which the victims also worked or affiliated with the

would be inappropriate to apply to these

CPA and other left-leaning groups.

proceedings the doctrine of command

The petition further premised government
complicity in the abduction of James on the very
positions held by the respondents. The Court in
Rubrico v. Macapagal-Arroyo had the occasion to
expound on the doctrine of command
responsibility and why it has little bearing, if at all,
in amparo proceedings.

responsibility, as the CA seemed to have done, as a

form of criminal complicity through omission, for
individual respondents criminal liability, if there
be any, is beyond the reach of amparo. In other
words, the Court does not rule in such proceedings
on any issue of criminal culpability, even if
incidentally a crime or an infraction of an
administrative rule may have been committed. As
the Court stressed in Secretary of National Defense

It may plausibly be contended that command

v. Manalo (Manalo), the writ of amparo was

responsibility, as legal basis to hold military/police

conceived to provide expeditious and effective

commanders liable for extra-legal killings,

procedural relief against violations or threats of

enforced disappearances, or threats, may be made

violation of the basic rights to life, liberty, and

security of persons; the corresponding amparo

crimes penalized separately from the component

suit, however, is not an action to determine

criminal acts undertaken to carry out these killings

criminal guilt requiring proof beyond reasonable

and enforced disappearances and are now

doubt x x x or administrative liability requiring

penalized under the Revised Penal Code and

substantial evidence that will require full and

special laws. The simple reason is that the

exhaustive proceedings. Of the same tenor, and by

Legislature has not spoken on the matter; the

way of expounding on the nature and role of

determination of what acts are criminal x x x are

amparo, is what the Court said in Razon v. Tagitis:

matters of substantive law that only the Legislature

It does not determine guilt nor pinpoint criminal

has the power to enact. x x x[

culpability for the disappearance [threats thereof

Assessing the evidence on record, we find that the

or extrajudicial killings]; it determines

participation in any manner of military and police

responsibility, or at least accountability, for the

authorities in the abduction of James has not been

enforced disappearance [threats thereof or

adequately proven. The identities of the abductors

extrajudicial killings] for purposes of imposing the

have not been established, much less their link to

appropriate remedies to address the disappearance

any military or police unit. There is likewise no

[or extrajudicial killings].

concrete evidence indicating that James is being

As the law now stands, extrajudicial killings and
enforced disappearances in this jurisdiction are not

held or detained upon orders of or with

acquiescence of government agents. Consequently,
the trial court erred in granting amparo reliefs.

Such pronouncement of responsibility on the part

establishments based merely on the allegation that

of public respondents cannot be made given the

the testimonies of victims and witnesses in

insufficiency of evidence. However, we agree with

previous incidents of similar abductions involving

the trial court in finding that the actions taken by

activists disclosed that those premises were used as

respondent officials are very limited, superficial

detention centers. In the same vein, the prayer for

and one-sided. Its candid and forthright

issuance of a production order was predicated on

observations on the efforts exerted by the

petitioners bare allegation that it obtained

respondents are borne by the evidence on record.

confidential information from an unidentified

An inspection order is an interim relief designed to
give support or strengthen the claim of a petitioner
in an amparo petition, in order to aid the court
before making a decision. A basic requirement
before an amparo court may grant an inspection
order is that the place to be inspected is reasonably
determinable from the allegations of the party
seeking the order. In this case, the issuance of
inspection order was properly denied since the
petitioners specified several military and police

military source, that the name of James was

included in the so-called Order of Battle. Indeed,
the trial court could not have sanctioned any
fishing expedition by precipitate issuance of
inspection and production orders on the basis of
insufficient claims of one party.