G.R. No.

183871

Republic of the Philippines

SUPREME COURT
Manila

Ugnayan ng Maralita para sa Gawa Adhikan, was released at

Dasmarias, Cavite, her hometown, but only after being made to
sign a statement that she would be a military asset.

EN BANC

After Lourdes release, the harassment, coming in the form of

being tailed on at least two occasions at different places, i.e.,
Dasmarias, Cavite and Baclaran in Pasay City, by motorcycleriding men in bonnets, continued;

February 18, 2010

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY

RUBRICO CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON,
P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN
REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO
CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO,
ARSENIO C. GOMEZ, and OFFICE OF THE
OMBUDSMAN, Respondents.

2. During the time Lourdes was missing, P/Sr. Insp. Arsenio

Gomez (P/Insp. Gomez), then sub-station commander of Bagong
Bayan, Dasmarias, Cavite, kept sending text messages to
Lourdes daughter, Mary Joy R. Carbonel (Mary Joy), bringing her
to beaches and asking her questions about Karapatan, an
alliance of human rights organizations. He, however, failed to
make an investigation even after Lourdes disappearance had
been made known to him;

DECISION

3. A week after Lourdes release, another daughter, Jean R.

Apruebo (Jean), was constrained to leave their house because of
the presence of men watching them;

In this petition for review under Rule 45 of the Rules of Court in relation to
Section 191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D.
Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail
and seek to set aside the Decision3 of the Court of Appeals (CA) dated
July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the
Amparo Rule.

4. Lourdes has filed with the Office of the Ombudsman a criminal

complaint for kidnapping and arbitrary detention and
administrative complaint for gross abuse of authority and grave
misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben
Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan,
c/o Headquarters 301st AISS, Fernando Air Base and Maj.
Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd.,
Paraaque City, but nothing has happened; and the threats and
harassment incidents have been reported to the Dasmarias
municipal and Cavite provincial police stations, but nothing
eventful resulted from their respective investigations.

VELASCO, JR., J.:

The petition for the writ of amparo dated October 25, 2007 was originally
filed before this Court. After issuing the desired writ and directing the
respondents to file a verified written return, the Court referred the petition
to the CA for summary hearing and appropriate action. The petition and
its attachments contained, in substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air
Intelligence and Security Squadron (AISS, for short) based in
Fernando Air Base in Lipa City abducted Lourdes D. Rubrico
(Lourdes), then attending a Lenten pabasa in Bagong Bayan,
Dasmarias, Cavite, and brought to, and detained at, the air base
without charges. Following a week of relentless interrogation conducted alternately by hooded individuals - and what amounts
to verbal abuse and mental harassment, Lourdes, chair of the

Two of the four witnesses to Lourdes abduction went into hiding

after being visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The
investigation would indicate that men belonging to the Armed
Forces of the Philippines (AFP), namely Capt. Cuaresma of the
Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj.
Darwin Sy/Reyes, led the abduction of Lourdes; that unknown to
the abductors, Lourdes was able to pilfer a "mission order" which

was addressed to CA Ruben Alfaro and signed by Capt.

Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual
respondents to desist from performing any threatening act against the
security of the petitioners and for the Office of the Ombudsman (OMB) to
immediately file an information for kidnapping qualified with the
aggravating circumstance of gender of the offended party. It also prayed
for damages and for respondents to produce documents submitted to any
of them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.
Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief
of Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then
Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.)
Roquero of the Cavite Police Provincial Office, Police Inspector (P/Insp.)
Gomez, now retired, and the OMB (answering respondents, collectively)
filed, through the Office of the Solicitor General (OSG), a joint return on
the writ specifically denying the material inculpatory averments against
them. The OSG also denied the allegations against the following
impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan, and
Sy/Reyes, for lack of knowledge or information sufficient to form a belief
as to the allegations truth. And by way of general affirmative defenses,
answering respondents interposed the following defenses: (1) the
President may not be sued during her incumbency; and (2) the petition is
incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e)
of the Amparo Rule.4
Attached to the return were the affidavits of the following, among other
public officials, containing their respective affirmative defenses and/or
statements of what they had undertaken or committed to undertake
regarding the claimed disappearance of Lourdes and the harassments
made to bear on her and her daughters:
1. Gen. Esperon attested that, pursuant to a directive of then
Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he
ordered the Commanding General of the PAF, with information to
all concerned units, to conduct an investigation to establish the
circumstances behind the disappearance and the reappearance
of Lourdes insofar as the involvement of alleged personnel/unit is
concerned. The Provost Marshall General and the Office of the
Judge Advocate General (JAGO), AFP, also undertook a parallel
action.

Gen. Esperon manifested his resolve to provide the CA with

material results of the investigation; to continue with the probe on
the alleged abduction of Lourdes and to bring those responsible,
including military personnel, to the bar of justice when warranted
by the findings and the competent evidence that may be gathered
in the investigation process by those mandated to look into the
matter;5
2. P/Dir. Gen. Razon - stated that an investigation he immediately
ordered upon receiving a copy of the petition is on-going vis--vis
Lourdes abduction, and that a background verification with the
PNP Personnel Accounting and Information System disclosed
that the names Santana, Alfaro, Cuaresma and one Jonathan do
not appear in the police personnel records, although the PNP files
carry the name of Darwin Reyes Y. Muga.
Per the initial investigation report of the Dasmarias municipal
police station, P/Dir. Gen. Razon disclosed, Lourdes was
abducted by six armed men in the afternoon of April 3, 2007 and
dragged aboard a Toyota Revo with plate number XRR 428,
which plate was issued for a Mitsubishi van to AK Cottage
Industry with address at 9 Amsterdam St., Merville Subd.,
Paraaque City. The person residing in the apartment on that
given address is one Darius/Erwin See @ Darius Reyes allegedly
working, per the latters house helper, in Camp Aguinaldo.
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico
never contacted nor coordinated with the local police or other
investigating units of the PNP after her release, although she is in
the best position to establish the identity of her abductors and/or
provide positive description through composite sketching.
Nonetheless, he manifested that the PNP is ready to assist and
protect the petitioners and the key witnesses from threats,
harassments and intimidation from whatever source and, at the
same time, to assist the Court in the implementation of its
orders.6
1avvphi1

3. P/Supt. Roquero stated conducting, upon receipt of Lourdes

complaint, an investigation and submitting the corresponding
report to the PNP Calabarzon, observing that neither Lourdes nor
her relatives provided the police with relevant information;

4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses

refused to cooperate with the investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that
cases for violation of Articles 267 and 124, or kidnapping and
arbitrary detention, respectively, have been filed with, and are
under preliminary investigation by the OMB against those
believed to be involved in Lourdes kidnapping; that upon receipt
of the petition for a writ of amparo, proper coordination was made
with the Office of the Deputy Ombudsman for the Military and
other Law Enforcement Offices (MOLEO) where the subject
criminal and administrative complaints were filed.
Commenting on the return, petitioners pointed out that the return was no
more than a general denial of averments in the petition. They, thus,
pleaded to be allowed to present evidence ex parte against the President,
Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with
leave of court, they also asked to serve notice of the petition through
publication, owing to their failure to secure the current address of the
latter five and thus submit, as the CA required, proof of service of the
petition on them.
The hearing started on November 13, 2007.7 In that setting, petitioners
counsel prayed for the issuance of a temporary protection order (TPO)
against the answering respondents on the basis of the allegations in the
petition. At the hearing of November 20, 2007, the CA granted petitioners
motion that the petition and writ be served by the courts process server
on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.

WHEREFORE, premises considered, partial judgment is hereby

rendered DISMISSING the instant petition with respect to respondent
Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B.
Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the
Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as
another unsolved case, the heads of the Armed Forces of the Philippines
and the Philippine National Police are directed to ensure that the
investigations already commenced are diligently pursued to bring the
perpetrators to justice. The Chief of Staff of the Armed Forces of the
Philippines and P/Dir. Gen. Avelino Razon are directed to regularly
update petitioners and this Court on the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the
following wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing
[their] Petition and dropping President Gloria Macapagal Arroyo as party
respondent.
Petitioners first take issue on the Presidents purported lack of immunity
from suit during her term of office. The 1987 Constitution, so they claim,
has removed such immunity heretofore enjoyed by the chief executive
under the 1935 and 1973 Constitutions.

The legal skirmishes that followed over the propriety of excluding

President Arroyo from the petition, petitioners motions for service by
publication, and the issuance of a TPO are not of decisive pertinence in
this recital. The bottom line is that, by separate resolutions, the CA
dropped the President as respondent in the case; denied the motion for a
TPO for the courts want of authority to issue it in the tenor sought by
petitioners; and effectively denied the motion for notice by publication
owing to petitioners failure to submit the affidavit required under Sec. 17,
Rule 14 of the Rules of Court.8

Petitioners are mistaken. The presidential immunity from suit remains

preserved under our system of government, albeit not expressly reserved
in the present constitution. Addressing a concern of his co-members in
the 1986 Constitutional Commission on the absence of an express
provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was
already understood in jurisprudence that the President may not be sued
during his or her tenure.9 The Court subsequently made it abundantly
clear in David v. Macapagal-Arroyo, a case likewise resolved under the
umbrella of the 1987 Constitution, that indeed the President enjoys
immunity during her incumbency, and why this must be so:

After due proceedings, the CA rendered, on July 31, 2008, its partial
judgment, subject of this review, disposing of the petition but only insofar
as the answering respondents were concerned. The fallo of the CA
decision reads as follows:

Settled is the doctrine that the President, during his tenure of office or
actual incumbency, may not be sued in any civil or criminal case, and
there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if he can

be dragged into court litigations while serving as such. Furthermore, it is

important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation
of the Government.10 x x x
And lest it be overlooked, the petition is simply bereft of any allegation as
to what specific presidential act or omission violated or threatened to
violate petitioners protected rights.
This brings us to the correctness of the assailed dismissal of the petition
with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero,
P/Insp. Gomez, and the OMB.
None of the four individual respondents immediately referred to above
has been implicated as being connected to, let alone as being behind, the
alleged abduction and harassment of petitioner Lourdes. Their names
were not even mentioned in Lourdes Sinumpaang Salaysay11 of April
2007. The same goes for the respective Sinumpaang
Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean12 and Mary
Joy.13
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were
included in the case on the theory that they, as commanders, were
responsible for the unlawful acts allegedly committed by their
subordinates against petitioners. To the appellate court, "the privilege of
the writ of amparo must be denied as against Gen. Esperon and P/Dir.
Gen. Razon for the simple reason that petitioners have not presented
evidence showing that those who allegedly abducted and illegally
detained Lourdes and later threatened her and her family were, in fact,
members of the military or the police force." The two generals, the CAs
holding broadly hinted, would have been accountable for the abduction
and threats if the actual malefactors were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded
because they allegedly had not exerted the required extraordinary
diligence in investigating and satisfactorily resolving Lourdes
disappearance or bringing to justice the actual perpetrators of what
amounted to a criminal act, albeit there were allegations against P/Insp.
Gomez of acts constituting threats against Mary Joy.

While in a qualified sense tenable, the dismissal by the CA of the case as

against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed
against the backdrop of the stated rationale underpinning the assailed
decision vis--vis the two generals, i.e., command responsibility. The
Court assumes the latter stance owing to the fact that command
responsibility, as a concept defined, developed, and applied under
international law, has little, if at all, bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in
the development of laws of war and armed combats. According to Fr.
Bernas, "command responsibility," in its simplest terms, means the
"responsibility of commanders for crimes committed by subordinate
members of the armed forces or other persons subject to their control in
international wars or domestic conflict."14 In this sense, command
responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command
responsibility,15 foreshadowing the present-day precept of holding a
superior accountable for the atrocities committed by his subordinates
should he be remiss in his duty of control over them. As then formulated,
command responsibility is "an omission mode of individual criminal
liability," whereby the superior is made responsible for crimes
committed by his subordinates for failing to prevent or punish the
perpetrators16 (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute 17 of the
International Criminal Court (ICC) to which the Philippines is signatory.
Sec. 28 of the Statute imposes individual responsibility on military
commanders for crimes committed by forces under their control. The
country is, however, not yet formally bound by the terms and provisions
embodied in this treaty-statute, since the Senate has yet to extend
concurrence in its ratification.18
While there are several pending bills on command responsibility,19 there is
still no Philippine law that provides for criminal liability under that
doctrine.20
It may plausibly be contended that command responsibility, as legal basis
to hold military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on
the theory that the command responsibility doctrine now constitutes a
principle of international law or customary international law in accordance
with the incorporation clause of the Constitution. 21 Still, it would be
inappropriate to apply to these proceedings the doctrine of command
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 v. Manalo (Manalo),22 the writ of amparo was conceived to
provide expeditious and effective procedural relief against violations or
threats of violation of the basic rights to life, liberty, and security of
persons; the corresponding amparo suit, however, "is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or
administrative liability requiring substantial evidence that will require full
and exhaustive proceedings." 23 Of the same tenor, and by way of
expounding on the nature and role of amparo, is what the Court said
in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the
disappearance [threats thereof or extra-judicial killings]; it determines
responsibility, or at least accountability, for the enforced disappearance
[threats thereof or extra-judicial killings] for purposes of imposing the
appropriate remedies to address the disappearance [or extra-judicial
killings].

Petitioners, as the CA has declared, have not adduced substantial

evidence pointing to government involvement in the disappearance of
Lourdes. To a concrete point, petitioners have not shown that the actual
perpetrators of the abduction and the harassments that followed formally
or informally formed part of either the military or the police chain of
command. A preliminary police investigation report, however, would tend
to show a link, however hazy, between the license plate (XRR 428) of the
vehicle allegedly used in the abduction of Lourdes and the address of
Darwin Reyes/Sy, who was alleged to be working in Camp
Aguinaldo.25 Then, too, there were affidavits and testimonies on events
that transpired which, if taken together, logically point to military
involvement in the alleged disappearance of Lourdes, such as, but not
limited to, her abduction in broad daylight, her being forcibly dragged to a
vehicle blindfolded and then being brought to a place where the sounds
of planes taking off and landing could be heard. Mention may also be
made of the fact that Lourdes was asked about her membership in the
Communist Party and of being released when she agreed to become an
"asset."
Still and all, the identities and links to the AFP or the PNP of the alleged
abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes,
have yet to be established.

xxxx
As the law now stands, extra-judicial 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. The simple reason is that the Legislature
has not spoken on the matter; the determination of what acts are criminal
x x x are matters of substantive law that only the Legislature has the
power to enact.24 x x x
If command responsibility were to be invoked and applied to these
proceedings, it should, at most, be only to determine the author who, at
the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the
Court to devise remedial measures that may be appropriate under the
premises to protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a
prelude to administrative disciplinary proceedings under existing
administrative issuances, if there be any.

Based on the separate sworn statements of Maj. Paul Ciano 26 and

Technical Sergeant John N. Romano,27officer-in-charge and a staff of the
301st AISS, respectively, none of the alleged abductors of Lourdes
belonged to the 301st AISS based in San Fernando Air Base. Neither
were they members of any unit of the Philippine Air Force, per the
certification28 of Col. Raul Dimatactac, Air Force Adjutant. And as stated in
the challenged CA decision, a verification with the Personnel Accounting
and Information System of the PNP yielded the information that, except
for a certain Darwin Reyes y Muga, the other alleged abductors, i.e.,
Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
Petitioners, when given the opportunity to identify Police Officer 1 Darwin
Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin
Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering
respondents documentary evidence, adduced to debunk the formers
allegations directly linking Lourdes abductors and tormentors to the
military or the police establishment. We note, in fact, that Lourdes, when
queried on cross-examination, expressed the belief that Sy/Reyes was an
NBI agent.29 The Court is, of course, aware of what was referred to in
Razon30 as the "evidentiary difficulties" presented by the nature of, and

encountered by petitioners in, enforced disappearance cases. But it is

precisely for this reason that the Court should take care too that no wrong
message is sent, lest one conclude that any kind or degree of evidence,
even the outlandish, would suffice to secure amparo remedies and
protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly
prescribes the minimum evidentiary substantiation requirement and norm
to support a cause of action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The
parties shall establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.x x x If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or
violation that would warrant a finding of liability against the person
charged;31 it is more than a scintilla of evidence. It means such amount of
relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might opine
otherwise.32 Per the CAs evaluation of their evidence, consisting of the
testimonies and affidavits of the three Rubrico women and five other
individuals, petitioners have not satisfactorily hurdled the evidentiary bar
required of and assigned to them under the Amparo Rule. In a very real
sense, the burden of evidence never even shifted to answering
respondents. The Court finds no compelling reason to disturb the
appellate courts determination of the answering respondents role in the
alleged enforced disappearance of petitioner Lourdes and the threats to
her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen.
Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time,
upon their receipt of the order to make a return on the writ, in issuing
directives to the concerned units in their respective commands for a
thorough probe of the case and in providing the investigators the
necessary support. As of this date, however, the investigations have yet
to be concluded with some definite findings and recommendation.

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than
satisfied that they have no direct or indirect hand in the alleged enforced
disappearance of Lourdes and the threats against her daughters. As
police officers, though, theirs was the duty to thoroughly investigate the
abduction of Lourdes, a duty that would include looking into the cause,
manner, and like details of the disappearance; identifying witnesses and
obtaining statements from them; and following evidentiary leads, such as
the Toyota Revo vehicle with plate number XRR 428, and securing and
preserving evidence related to the abduction and the threats that may aid
in the prosecution of the person/s responsible. As we said
in Manalo,33 the right to security, as a guarantee of protection by the
government, is breached by the superficial and one-sidedhence,
ineffectiveinvestigation by the military or the police of reported cases
under their jurisdiction. As found by the CA, the local police stations
concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a
preliminary fact-finding on petitioners complaint. They could not,
however, make any headway, owing to what was perceived to be the
refusal of Lourdes, her family, and her witnesses to cooperate.
Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible
explanation for his clients and their witnesses attitude, "[They] do not
trust the government agencies to protect them."34 The difficulty arising
from a situation where the party whose complicity in extra-judicial killing
or enforced disappearance, as the case may be, is alleged to be the
same party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to
cooperate ought not to pose a hindrance to the police in pursuing, on its
own initiative, the investigation in question to its natural end. To repeat
what the Court said in Manalo, the right to security of persons is a
guarantee of the protection of ones right by the government. And this
protection includes conducting effective investigations of extra-legal
killings, enforced disappearances, or threats of the same kind. The nature
and importance of an investigation are captured in the Velasquez
Rodriguez case,35 in which the Inter-American Court of Human Rights
pronounced:
[The duty to investigate] must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not
a step taken by private interests that depends upon the initiative of
the victim or his family or upon offer of proof, without an effective search
for the truth by the government. (Emphasis added.)

This brings us to Mary Joys charge of having been harassed by

respondent P/Insp. Gomez. With the view we take of this incident, there
is nothing concrete to support the charge, save for Mary Joys bare
allegations of harassment. We cite with approval the following selfexplanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or
threat P/Sr. Gomez (ret) committed against her or her mother and sister,
Mary Joy replied "None "36
Similarly, there appears to be no basis for petitioners allegations about
the OMB failing to act on their complaint against those who allegedly
abducted and illegally detained Lourdes. Contrary to petitioners
contention, the OMB has taken the necessary appropriate action on said
complaint. As culled from the affidavit37 of the Deputy Overall
Ombudsman and the joint affidavits38 of the designated investigators, all
dated November 7, 2007, the OMB had, on the basis of said complaint,
commenced criminal39 and administrative40 proceedings, docketed as
OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against
Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite
orders for the submission of counter-affidavits and verified position
papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to
victims of extra-judicial killings and enforced disappearances or threats of
similar nature, regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA
with the correct addresses of respondents Cuaresma, Alfaro, Santana,
Jonathan, and Sy/Reyes. The mailed envelopes containing the petition
for a writ of amparo individually addressed to each of them have all been
returned unopened. And petitioners motion interposed before the
appellate court for notice or service via publication has not been
accompanied by supporting affidavits as required by the Rules of Court.
Accordingly, the appealed CA partial judgmentdisposing of the
underlying petition for a writ of amparo without (1) pronouncement as to
the accountability, or lack of it, of the four non-answering respondents or
(2) outright dismissal of the same petition as to themhews to the
prescription of Sec. 20 of the Amparo Rule on archiving and reviving
cases.41 Parenthetically, petitioners have also not furnished this Court
with sufficient data as to where the afore-named respondents may be
served a copy of their petition for review.

Apart from the foregoing considerations, the petition did not allege
ultimate facts as would link the OMB in any manner to the violation or
threat of violation of the petitioners rights to life, liberty, or personal
security.
The privilege of the writ of amparo is envisioned basically to protect and
guarantee the rights to life, liberty, and security of persons, free from
fears and threats that vitiate the quality of this life. 42 It is an extraordinary
writ conceptualized and adopted in light of and in response to the
prevalence of extra-legal killings and enforced
disappearances.43 Accordingly, the remedy ought to be resorted to and
granted judiciously, lest the ideal sought by the Amparo Rule be diluted
and undermined by the indiscriminate filing of amparo petitions for
purposes less than the desire to secure amparo reliefs and protection
and/or on the basis of unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main
prayer, that the Court order the impleaded respondents "to immediately
desist from doing any acts that would threaten or seem to threaten the
security of the Petitioners and to desist from approaching Petitioners, x x
x their residences and offices where they are working under pain of
contempt of [this] Court." Petitioners, however, failed to adduce the
threshold substantive evidence to establish the predicate facts to support
their cause of action, i.e., the adverted harassments and threats to their
life, liberty, or security, against responding respondents, as responsible
for the disappearance and harassments complained of. This is not to say,
however, that petitioners allegation on the fact of the abduction incident
or harassment is necessarily contrived. The reality on the ground,
however, is that the military or police connection has not been adequately
proved either by identifying the malefactors as components of the AFP or
PNP; or in case identification is not possible, by showing that they acted
with the direct or indirect acquiescence of the government. For this
reason, the Court is unable to ascribe the authorship of and responsibility
for the alleged enforced disappearance of Lourdes and the harassment
and threats on her daughters to individual respondents. To this extent, the
dismissal of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes that
the appealed decision veritably extended the privilege of the writ of
amparo to petitioners when it granted what to us are amparo reliefs.
Consider: the appellate court decreed, and rightly so, that the police and
the military take specific measures for the protection of petitioners right
or threatened right to liberty or security. The protection came in the form

of directives specifically to Gen. Esperon and P/Dir. Gen. Razon,

requiring each of them (1) to ensure that the investigations already
commenced by the AFP and PNP units, respectively, under them on the
complaints of Lourdes and her daughters are being pursued with urgency
to bring to justice the perpetrators of the acts complained of; and (2) to
submit to the CA, copy furnished the petitioners, a regular report on the
progress and status of the investigations. The directives obviously go to
Gen. Esperon in his capacity as head of the AFP and, in a sense, chief
guarantor of order and security in the country. On the other hand, P/Dir.
Gen. Razon is called upon to perform a duty pertaining to the PNP, a
crime-preventing, investigatory, and arresting institution.
As the CA, however, formulated its directives, no definitive time frame
was set in its decision for the completion of the investigation and the
reportorial requirements. It also failed to consider Gen. Esperon and
P/Dir. Gen. Razons imminent compulsory retirement from the military
and police services, respectively. Accordingly, the CA directives, as
hereinafter redefined and amplified to fully enforce the amparo remedies,
are hereby given to, and shall be directly enforceable against, whoever
sits as the commanding general of the AFP and the PNP.
At this stage, two postulates and their implications need highlighting for a
proper disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary
detention rooted in the same acts and incidents leading to the filing of the
subject amparo petition has been instituted with the OMB, docketed as
OMB-P-C-O7-0602-E. The usual initial steps to determine the existence
of a prima facie case against the five (5) impleaded individuals suspected
to be actually involved in the detention of Lourdes have been set in
motion. It must be pointed out, though, that the filing44 of the OMB
complaint came before the effectivity of the Amparo Rule on October 24,
2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo
petition should a criminal action have, in the meanwhile, been
commenced. The succeeding Sec. 23,46 on the other hand, provides that
when the criminal suit is filed subsequent to a petition for amparo, the
petition shall be consolidated with the criminal action where the Amparo
Rule shall nonetheless govern the disposition of the relief under the Rule.
Under the terms of said Sec. 22, the present petition ought to have been
dismissed at the outset. But as things stand, the outright dismissal of the
petition by force of that section is no longer technically feasible in light of
the interplay of the following factual mix: (1) the Court has, pursuant to

Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the
CA, after a summary hearing, has dismissed the petition, but not on the
basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named
as respondents only those believed to be the actual abductors of
Lourdes, while the instant petition impleaded, in addition, those tasked to
investigate the kidnapping and detention incidents and their superiors at
the top. Yet, the acts and/or omissions subject of the criminal complaint
and the amparo petition are so linked as to call for the consolidation of
both proceedings to obviate the mischief inherent in a multiplicity-of-suits
situation.
Given the above perspective and to fully apply the beneficial nature of the
writ of amparo as an inexpensive and effective tool to protect certain
rights violated or threatened to be violated, the Court hereby adjusts to a
degree the literal application of Secs. 22 and 23 of the Amparo Rule to
fittingly address the situation obtaining under the premises. 48 Towards
this end, two things are at once indicated: (1) the consolidation of the
probe and fact-finding aspects of the instant petition with the investigation
of the criminal complaint before the OMB; and (2) the incorporation in the
same criminal complaint of the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB should be furnished
copies of the investigation reports to aid that body in its own investigation
and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB
shall be given easy access to all pertinent documents and evidence, if
any, adduced before the CA. Necessarily, Lourdes, as complainant in
OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her
basic criminal complaint if the consolidation of cases is to be fully
effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review
and makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo
from the petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen.
Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as
it tended, under the command responsibility principle, to attach
accountability and responsibility to them, as then AFP Chief of
Staff and then PNP Chief, for the alleged enforced disappearance
of Lourdes and the ensuing harassments allegedly committed
against petitioners. The dismissal of the petition with respect to
the OMB is also affirmed for failure of the petition to allege
ultimate facts as to make out a case against that body for the

enforced disappearance of Lourdes and the threats and

harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his successor,
and the incumbent Director-General of the PNP, or his successor,
to ensure that the investigations already commenced by their
respective units on the alleged abduction of Lourdes Rubrico and
the alleged harassments and threats she and her daughters were
made to endure are pursued with extraordinary diligence as
required by Sec. 1749 of the Amparo Rule. They shall order their
subordinate officials, in particular, to do the following:
(a) Determine based on records, past and present, the
identities and locations of respondents Maj. Darwin Sy,
a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt.
Angelo Cuaresma, and one Jonathan; and submit
certifications of this determination to the OMB with copy
furnished to petitioners, the CA, and this Court;
(b) Pursue with extraordinary diligence the evidentiary
leads relating to Maj. Darwin Sy and the Toyota Revo
vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or
witnesses, cartographic sketches of respondents Maj.
Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo
Cuaresma, and a certain Jonathan to aid in positively
identifying and locating them.
The investigations shall be completed not later than six (6) months from
receipt of this Decision; and within thirty (30) days after completion of the
investigations, the Chief of Staff of the AFP and the Director-General of
the PNP shall submit a full report of the results of the investigations to the
Court, the CA, the OMB, and petitioners.
This case is accordingly referred back to the CA for the purpose of
monitoring the investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial
judgment dated July 31, 2008 of the CA.
SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION
ARTEMIO VILLAREAL,

G.R. No. 151258

Petitioner,
- versus
PEOPLE OF THE PHILIPPINES,
Respondent.
x-------------------------x

x-------------------------x

PEOPLE OF THE PHILIPPINES,

FIDELITO DIZON,

Petitioner,

Petitioner,

- versus -

- versus-

THE HONORABLE COURT OF APPEALS,

ANTONIO MARIANO ALMEDA, DALMACIO
LIM, JR., JUNEL ANTHONY AMA, ERNESTO
JOSE MONTECILLO, VINCENT TECSON,
ANTONIO GENERAL, SANTIAGO RANADA III,
NELSON VICTORINO, JAIME MARIA FLORES
II, ZOSIMO MENDOZA, MICHAEL MUSNGI,
G.R. No. 154954
VICENTE VERDADERO, ETIENNE
GUERRERO, JUDE FERNANDEZ, AMANTE
PURISIMA II, EULOGIO SABBAN, PERCIVAL
BRIGOLA, PAUL ANGELO SANTOS, JONAS
KARL B. PEREZ, RENATO BANTUG, JR.,
ADEL ABAS, JOSEPH LLEDO, and RONAN
DE GUZMAN,

PEOPLE OF THE PHILIPPINES,

Respondents.

G.R. No. 155101

Respondent.
x-------------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA,

x--------------------------------------------------x

DECISION
SERENO, J.:

The public outrage over the death of Leonardo Lenny Villa the victim in
this case on 10 February 1991 led to a very strong clamor to put an end
to hazing.[1] Due in large part to the brave efforts of his mother, petitioner
Gerarda Villa, groups were organized, condemning his senseless and
tragic death. This widespread condemnation prompted Congress to enact
a special law, which became effective in 1995, that would criminalize
hazing.[2] The intent of the law was to discourage members from making
hazing a requirement for joining their sorority, fraternity, organization, or
association.[3] Moreover, the law was meant to counteract the exculpatory
implications of consent and initial innocent act in the conduct of initiation
rites by making the mere act of hazing punishable or mala prohibita.[4]
Sadly, the Lenny Villa tragedy did not discourage hazing activities in the
country.[5] Within a year of his death, six more cases of hazing-related
deaths emerged those of Frederick Cahiyang of the University of Visayas
in Cebu; Raul Camaligan of San Beda College; Felipe Narne of
Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the
Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant
Marine Institute; and Joselito Hernandez of the University of the
Philippines in Baguio City.[6]
Although courts must not remain indifferent to public sentiments, in this
case the general condemnation of a hazing-related death, they are still
bound to observe a fundamental principle in our criminal justice system
[N]o act constitutes a crime unless it is made so by law.[7] Nullum crimen,
nulla poena sine lege. Even if an act is viewed by a large section of the
populace as immoral or injurious, it cannot be considered a crime, absent
any law prohibiting its commission. As interpreters of the law, judges
are called upon to set aside emotion, to resist being swayed by strong
public sentiments, and to rule strictly based on the elements of the
offense and the facts allowed in evidence.
Before the Court are the consolidated cases docketed as G.R. No.
151258 (Villareal v. People), G.R. No. 154954 (People v. Court of
Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and
178080 (Villa v. Escalona).
FACTS
The pertinent facts, as determined by the Court of Appeals (CA)[8] and the
trial court,[9] are as follows:

In February 1991, seven freshmen law students of the Ateneo de Manila

University School of Law signified their intention to join the Aquila Legis
Juris Fraternity (Aquila Fraternity). They were Caesar Bogs Asuncion,
Samuel Sam Belleza, Bienvenido Bien Marquez III, Roberto Francis Bert
Navera, Geronimo Randy Recinto, Felix Sy, Jr., and Leonardo Lenny Villa
(neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo
Law School. They all proceeded to Rufos Restaurant to have dinner.
Afterwards, they went to the house of Michael Musngi, also an Aquilan,
who briefed the neophytes on what to expect during the initiation rites.
The latter were informed that there would be physical beatings, and that
they could quit at any time. Their initiation rites were scheduled to last for
three days. After their briefing, they were brought to the Almeda
Compound in Caloocan City for the commencement of their initiation.
Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes alighted
from the van and walked towards the pelota court of the Almeda
compound, some of the Aquilans delivered physical blows to them. The
neophytes were then subjected to traditional forms of Aquilan initiation
rites. These rites included the Indian Run, which required the neophytes
to run a gauntlet of two parallel rows of Aquilans, each row delivering
blows to the neophytes; the Bicol Express, which obliged the neophytes
to sit on the floor with their backs against the wall and their legs
outstretched while the Aquilans walked, jumped, or ran over their legs;
the Rounds, in which the neophytes were held at the back of their pants
by the auxiliaries (the Aquilans charged with the duty of lending
assistance to neophytes during initiation rites), while the latter were being
hit with fist blows on their arms or with knee blows on their thighs by two
Aquilans; and the Auxies Privilege Round, in which the auxiliaries were
given the opportunity to inflict physical pain on the neophytes. During this
time, the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day 9 February 1991 the neophytes were
made to present comic plays and to play rough basketball. They were
also required to memorize and recite the Aquila Fraternitys principles.
Whenever they would give a wrong answer, they would be hit on their
arms or legs. Late in the afternoon, the Aquilans revived the initiation rites
proper and proceeded to torment them physically and psychologically.
The neophytes were subjected to the same manner of hazing that they

endured on the first day of initiation. After a few hours, the initiation for
the day officially ended.
After a while, accused non-resident or alumni fraternity
members[10] Fidelito Dizon (Dizon) and Artemio Villareal (Villareal)
demanded that the rites be reopened. The head of initiation rites, Nelson
Victorino (Victorino), initially refused. Upon the insistence of Dizon and
Villareal, however, he reopened the initiation rites. The fraternity
members, including Dizon and Villareal, then subjected the neophytes to
paddling and to additional rounds of physical pain. Lenny received
several paddle blows, one of which was so strong it sent him sprawling to
the ground. The neophytes heard him complaining of intense pain and
difficulty in breathing. After their last session of physical beatings, Lenny
could no longer walk. He had to be carried by the auxiliaries to the
carport. Again, the initiation for the day was officially ended, and the
neophytes started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by Lennys
shivering and incoherent mumblings. Initially, Villareal and Dizon
dismissed these rumblings, as they thought he was just overacting. When
they realized, though, that Lenny was really feeling cold, some of the
Aquilans started helping him. They removed his clothes and helped him
through a sleeping bag to keep him warm. When his condition worsened,
the Aquilans rushed him to the hospital. Lenny was pronounced dead on
arrival.
Consequently, a criminal case for homicide was filed against the following
35 Aquilans:
In Criminal Case No. C-38340(91)
1.

Fidelito Dizon (Dizon)

2.

Artemio Villareal (Villareal)

3.

Efren de Leon (De Leon)

4.

Vincent Tecson (Tecson)

5.

Junel Anthony Ama (Ama)

6.

Antonio Mariano Almeda (Almeda)

7.

Renato Bantug, Jr. (Bantug)

8.

Nelson Victorino (Victorino)

9.

Eulogio Sabban (Sabban)

10.

Joseph Lledo (Lledo)

11.

Etienne Guerrero (Guerrero)

12.

Michael Musngi (Musngi)

13.

Jonas Karl Perez (Perez)

14.

Paul Angelo Santos (Santos)

15.

Ronan de Guzman (De Guzman)

16.

Antonio General (General)

17.

Jaime Maria Flores II (Flores)

18.

Dalmacio Lim, Jr. (Lim)

19.

Ernesto Jose Montecillo (Montecillo)

20.

Santiago Ranada III (Ranada)

21.

Zosimo Mendoza (Mendoza)

22.

Vicente Verdadero (Verdadero)

23.

Amante Purisima II (Purisima)

24.

Jude Fernandez (J. Fernandez)

25.

Adel Abas (Abas)

26.

Percival Brigola (Brigola)

In Criminal Case No. C-38340

1.

Manuel Escalona II (Escalona)

2.

Crisanto Saruca, Jr. (Saruca)

3.

Anselmo Adriano (Adriano)

4.

Marcus Joel Ramos (Ramos)

5.

Reynaldo Concepcion (Concepcion)

6.

Florentino Ampil (Ampil)

7.

Enrico de Vera III (De Vera)

8.

Stanley Fernandez (S. Fernandez)

9.

Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C38340(91) were jointly tried.[11] On the other hand, the trial against the
remaining nine accused in Criminal Case No. C-38340 was held in
abeyance due to certain matters that had to be resolved first.[12]
On 8 November 1993, the trial court rendered judgment in Criminal
Case No. C-38340(91), holding the 26 accused guilty beyond
reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code.[13] A few weeks
after the trial court rendered its judgment, or on 29 November 1993,
Criminal Case No. C-38340 against the remaining nine
accused commenced anew.[14]
On 10 January 2002, the CA in (CA-G.R. No. 15520)[15] set aside the
finding of conspiracy by the trial court in Criminal Case No. C38340(91) and modified the criminal liability of each of the
accused according to individual participation. Accused De Leon had
by then passed away, so the following Decision applied only to the
remaining 25 accused, viz:
1.
Nineteen of the accused-appellants Victorino, Sabban, Lledo,
Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim,

Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas,

and Brigola (Victorino et al.) were acquitted, as their individual guilt was
not established by proof beyond reasonable doubt.
2.
Four of the accused-appellants Vincent Tecson, Junel Anthony
Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.)
were found guilty of the crime of slight physical injuries and sentenced
to 20 days of arresto menor. They were also ordered to jointly pay the
heirs of the victim the sum of 30,000 as indemnity.
3.
Two of the accused-appellants Fidelito Dizon and Artemio
Villareal were found guilty beyond reasonable doubt of the crime
of homicide under Article 249 of the Revised Penal Code. Having found
no mitigating or aggravating circumstance, the CA sentenced them to an
indeterminate sentence of 10 years of prision mayor to 17 years
of reclusion temporal. They were also ordered to indemnify, jointly and
severally, the heirs of Lenny Villa in the sum of 50,000 and to pay the
additional amount of 1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed
the charge against accused Concepcion on the ground of violation of his
right to speedy trial.[16]Meanwhile, on different dates between the years
2003 and 2005, the trial court denied the respective Motions to Dismiss of
accused Escalona, Ramos, Saruca, and Adriano. [17]On 25 October 2006,
the CA in CA-G.R. SP Nos. 89060 & 90153[18] reversed the trial courts
Orders and dismissed the criminal case against Escalona, Ramos,
Saruca, and Adriano on the basis of violation of their right to speedy trial.
[19]

From the aforementioned Decisions, the five (5) consolidated Petitions

were individually brought before this Court.
G.R. No. 151258 Villareal v. People
The instant case refers to accused Villareals Petition for Review
on Certiorari under Rule 45. The Petition raises two reversible errors
allegedly committed by the CA in its Decision dated 10 January 2002 in
CA-G.R. No. 15520 first, denial of due process; and, second, conviction
absent proof beyond reasonable doubt.[20]
While the Petition was pending before this Court, counsel for petitioner
Villareal filed a Notice of Death of Party on 10 August 2011. According to
the Notice, petitioner Villareal died on 13 March 2011. Counsel thus

asserts that the subject matter of the Petition previously filed by petitioner
does not survive the death of the accused.
G.R. No. 155101 Dizon v. People
Accused Dizon filed a Rule 45 Petition for Review on Certiorari,
questioning the CAs Decision dated 10 January 2002 and Resolution
dated 30 August 2002 in CA-G.R. No. 15520. [21] Petitioner sets forth two
main issues first, that he was denied due process when the CA sustained
the trial courts forfeiture of his right to present evidence; and, second,
that he was deprived of due process when the CA did not apply to him
the same ratio decidendi that served as basis of acquittal of the other
accused.[22]
As regards the first issue, the trial court made a ruling, which forfeited
Dizons right to present evidence during trial. The trial court expected
Dizon to present evidence on an earlier date since a co-accused, Antonio
General, no longer presented separate evidence during trial. According to
Dizon, his right should not have been considered as waived because he
was justified in asking for a postponement. He argues that he did not ask
for a resetting of any of the hearing dates and in fact insisted that he was
ready to present
evidence on the original pre-assigned schedule, and not on an earlier
hearing date.
Regarding the second issue, petitioner contends that he should have
likewise been acquitted, like the other accused, since his acts were also
part of the traditional initiation rites and were not tainted by evil motives.
[23]
He claims that the additional paddling session was part of the official
activity of the fraternity. He also points out that one of the neophytes
admitted that the chairperson of the initiation rites decided that [Lenny]
was fit enough to undergo the initiation so Mr. Villareal proceeded to do
the paddling.[24]Further, petitioner echoes the argument of the Solicitor
General that the individual blows inflicted by Dizon and Villareal could not
have resulted in Lennys death. [25] The Solicitor General purportedly
averred that, on the contrary, Dr. Arizala testified that the injuries suffered
by Lenny could not be considered fatal if taken individually, but if taken
collectively, the result is the violent death of the victim.[26]
Petitioner then counters the finding of the CA that he was motivated by ill
will. He claims that Lennys father could not have stolen the parking space
of Dizons father, since the latter did not have a car, and their fathers did
not work in the same place or office. Revenge for the loss of the parking

space was the alleged ill motive of Dizon. According to petitioner, his
utterances regarding a stolen parking space were only part of the
psychological initiation. He then cites the testimony of Lennys coneophyte witness Marquez who admitted knowing it was not true and that
he was just making it up.[27]
Further, petitioner argues that his alleged motivation of ill will was
negated by his show of concern for Villa after the initiation rites. Dizon
alludes to the testimony of one of the neophytes, who mentioned that the
former had kicked the leg of the neophyte and told him to switch places
with Lenny to prevent the latters chills. When the chills did not stop,
Dizon, together with Victorino, helped Lenny through a sleeping bag and
made him sit on a chair. According to petitioner, his alleged ill motivation
is contradicted by his manifestation of compassion and concern for the
victims well-being.
G.R. No. 154954 People v. Court of Appeals
This Petition for Certiorari under Rule 65 seeks the reversal of the CAs
Decision dated 10 January 2002 and Resolution dated 30 August 2002 in
CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and
convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of
slight physical injuries.[28] According to the Solicitor General, the CA erred
in holding that there could have been no conspiracy to commit hazing, as
hazing or fraternity initiation had not yet been criminalized at the time
Lenny died.
In the alternative, petitioner claims that the ruling of the trial court should
have been upheld, inasmuch as it found that there was conspiracy to
inflict physical injuries on Lenny. Since the injuries led to the victims
death, petitioner posits that the accused Aquilans are criminally liable for
the resulting crime of homicide, pursuant to Article 4 of the Revised Penal
Code.[29] The said article provides: Criminal liability shall be incurred [b]y
any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
Petitioner also argues that the rule on double jeopardy is inapplicable.
According to the Solicitor General, the CA acted with grave abuse of
discretion, amounting to lack or excess of jurisdiction, in setting aside the
trial courts finding of conspiracy and in ruling that the criminal liability of
all the accused must be based on their individual participation in the
commission of the crime.

G.R. Nos. 178057 and 178080 Villa v. Escalona

4.

Petitioner Villa filed the instant Petition for Review on Certiorari, praying
for the reversal of the CAs Decision dated 25 October 2006 and
Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and 90153.
[30]
The Petition involves the dismissal of the criminal charge filed
against Escalona, Ramos, Saruca, and Adriano.

5. Whether the CA committed grave abuse of discretion when it

pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight
physical injuries.

Due to several pending incidents, the trial court ordered a separate trial
for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De
Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to
commence after proceedings against the 26 other accused in Criminal
Case No. C-38340(91) shall have terminated. On 8 November 1993, the
trial court found the 26 accused guilty beyond reasonable doubt. As a
result, the proceedings in Criminal Case No. C-38340 involving the nine
other co-accused recommenced on 29 November 1993. For various
reasons, the initial trial of the case did not commence until 28 March
2005, or almost 12 years after the arraignment of the nine accused.

Resolution on Preliminary Matters

Petitioner Villa assails the CAs dismissal of the criminal case involving 4
of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She
argues that the accused failed to assert their right to speedy trial within a
reasonable period of time. She also points out that the prosecution
cannot be faulted for the delay, as the original records and the required
evidence were not at its disposal, but were still in the appellate court.
We resolve herein the various issues that we group into five.
ISSUES
1. Whether the forfeiture of petitioner Dizons right to present evidence
constitutes denial of due process;
2. Whether the CA committed grave abuse of discretion, amounting to
lack or excess of jurisdiction when it dismissed the case
against Escalona, Ramos, Saruca, and Adriano for violation of the right of
the accused to speedy trial;
3. Whether the CA committed grave abuse of discretion, amounting to
lack or excess of jurisdiction, when it set aside the finding of conspiracy
by the trial court and adjudicated the liability of each accused according
to individual participation;

Whether accused Dizon is guilty of homicide; and

DISCUSSION

G.R. No. 151258 Villareal v. People

In a Notice dated 26 September 2011 and while the Petition was pending
resolution, this Court took note of counsel for petitioners Notice of Death
of Party.
According to Article 89(1) of the Revised Penal Code, criminal liability for
personal penalties is totally extinguished by the death of the convict. In
contrast, criminal liability for pecuniary penalties is extinguished if the
offender dies prior to final judgment. The term personal penalties refers to
the service of personal or imprisonment penalties,[31] while the term
pecuniary penalties (las pecuniarias) refers to fines and costs,
[32]
including civil liability predicated on the criminal offense complained of
(i.e., civil liability ex delicto).[33] However, civil liability based on a source of
obligation other than the delict survives the death of the accused and is
recoverable through a separate civil action. [34]
Thus, we hold that the death of petitioner Villareal extinguished his
criminal liability for both personal and pecuniary penalties, including his
civil liability directly arising from the delict complained of. Consequently,
his Petition is hereby dismissed, and the criminal case against him
deemed closed and terminated.
G.R. No. 155101 (Dizon v. People)
In an Order dated 28 July 1993, the trial court set the dates for the
reception of evidence for accused-petitioner Dizon on the 8th, 15th, and
22nd of September; and the 5thand 12 of October 1993.[35] The Order
likewise stated that it will not entertain any postponement and that all the
accused who have not yet presented their respective evidence should be
ready at all times down the line, with their evidence on all said dates.
Failure on their part to present evidence when required shall therefore be
construed as waiver to present evidence.[36]

However, on 19 August 1993, counsel for another accused manifested in

open court that his client Antonio General would no longer present
separate evidence. Instead, the counsel would adopt the testimonial
evidence of the other accused who had already testified. [37] Because of
this development and pursuant to the trial courts Order that the parties
should be ready at all times down the line, the trial court expected Dizon
to present evidence on the next trial date 25 August 1993 instead of his
originally assigned dates. The original dates were supposed to start two
weeks later, or on 8 September 1993. [38] Counsel for accused Dizon was
not able to present evidence on the accelerated date. To address the
situation, counsel filed a Constancia on 25 August 1993, alleging that he
had to appear in a previously scheduled case, and that he would be
ready to present evidence on the dates originally assigned to his clients.
[39]
The trial court denied the Manifestation on the same date and treated
the Constancia as a motion for postponement, in violation of the threeday-notice rule under the Rules of Court.[40] Consequently, the trial court
ruled that the failure of Dizon to present evidence amounted to a waiver
of that right.[41]
Accused-petitioner Dizon thus argues that he was deprived of due
process of law when the trial court forfeited his right to present evidence.
According to him, the postponement of the 25 August 1993 hearing
should have been considered justified, since his original pre-assigned
trial dates were not supposed to start until 8 September 1993, when he
was scheduled to present evidence. He posits that he was ready to
present evidence on the dates assigned to him. He also points out that he
did not ask for a resetting of any of the said hearing dates; that he in fact
insisted on being allowed to present evidence on the dates fixed by the
trial court. Thus, he contends that the trial court erred in accelerating the
schedule of presentation of evidence, thereby invalidating the finding of
his guilt.
The right of the accused to present evidence is guaranteed by no less
than the Constitution itself.[42] Article III, Section 14(2) thereof, provides
that in all criminal prosecutions, the accused shall enjoy the right to
be heard by himself and counsel This constitutional right includes the
right to present evidence in ones defense,[43] as well as the right to be
present and defend oneself in person at every stage of the proceedings.
[44]

In Crisostomo v. Sandiganbayan,[45] the Sandiganbayan set the hearing of

the defenses presentation of evidence for 21, 22 and 23 June 1995. The
21 June 1995 hearing was cancelled due to lack of quorum in the regular
membership of the Sandiganbayans Second Division and upon the

agreement of the parties. The hearing was reset for the next day, 22 June
1995, but Crisostomo and his counsel failed to attend. The
Sandiganbayan, on the very same day, issued an Order directing the
issuance of a warrant for the arrest of Crisostomo and the confiscation of
his surety bond. The Order further declared that he had waived his right
to present evidence because of his nonappearance at yesterdays and
todays scheduled hearings. In ruling against the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of
Court, Crisostomos non-appearance during the 22 June 1995 trial
was merely a waiver of his right to be present for trial on such date
only and not for the succeeding trial dates
xxxxxxxxx
Moreover, Crisostomos absence on the 22 June 1995 hearing should
not have been deemed as a waiver of his right to present evidence.
While constitutional rights may be waived, such waiver must be clear
and must be coupled with an actual intention to relinquish the right.
Crisostomo did not voluntarily waive in person or even through his
counsel the right to present evidence. The Sandiganbayan imposed the
waiver due to the agreement of the prosecution, Calingayan, and
Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the
present case, the court is called upon to see to it that the accused is
personally made aware of the consequences of a waiver of the right
to present evidence. In fact, it is not enough that the accused is
simply warned of the consequences of another failure to attend the
succeeding hearings. The court must first explain to the accused
personally in clear terms the exact nature and consequences of a waiver.
Crisostomo was not even forewarned. The Sandiganbayan simply went
ahead to deprive Crisostomo of his right to present evidence without even
allowing Crisostomo to explain his absence on the 22 June 1995 hearing.
Clearly, the waiver of the right to present evidence in a criminal case
involving a grave penalty is not assumed and taken lightly. The
presence of the accused and his counsel is indispensable so that the
court could personally conduct a searching inquiry into the waiver x x x.
[46]
(Emphasis supplied)
The trial court should not have deemed the failure of petitioner to present
evidence on 25 August 1993 as a waiver of his right to present evidence.

On the contrary, it should have considered the excuse of counsel

justified, especially since counsel for another accused General had made
a last-minute adoption of testimonial evidence that freed up the
succeeding trial dates; and since Dizon was not scheduled to testify until
two weeks later. At any rate, the trial court pre-assigned five hearing
dates for the reception of evidence. If it really wanted to impose its Order
strictly, the most it could have done was to forfeit one out of the five days
set for Dizons testimonial evidence. Stripping the accused of all his preassigned trial dates constitutes a patent denial of the constitutionally
guaranteed right to due process.
Nevertheless, as in the case of an improvident guilty plea, an invalid
waiver of the right to present evidence and be heard does not per
se work to vacate a finding of guilt in the criminal case or to enforce an
automatic remand of the case to the trial court.[47] In People v. Bodoso, we
ruled that where facts have adequately been represented in a criminal
case, and no procedural unfairness or irregularity has prejudiced either
the prosecution or the defense as a result of the invalid waiver, the rule is
that a guilty verdict may nevertheless be upheld if the judgment is
supported beyond reasonable doubt by the evidence on record. [48]
We do not see any material inadequacy in the relevant facts on record to
resolve the case at bar. Neither can we see any procedural unfairness or
irregularity that would substantially prejudice either the prosecution or the
defense as a result of the invalid waiver. In fact, the arguments set forth
by accused Dizon in his Petition corroborate the material facts relevant to
decide the matter. Instead, what he is really contesting in his Petition is
the application of the law to the facts by the trial court and the CA.
Petitioner Dizon admits direct participation in the hazing of Lenny Villa by
alleging in his Petition that all actions of the petitioner were part of the
traditional rites, and that the alleged extension of the initiation rites was
not outside the official activity of the fraternity.[49] He even argues that
Dizon did not request for the extension and he participated only after the
activity was sanctioned.[50]
For one reason or another, the case has been passed or turned over from
one judge or justice to another at the trial court, at the CA, and even at
the Supreme Court. Remanding the case for the reception of the
evidence of petitioner Dizon would only inflict further injustice on the
parties. This case has been going on for almost two decades. Its
resolution is long overdue. Since the key facts necessary to decide the
case have already been determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)

Petitioner Villa argues that the case against Escalona, Ramos, Saruca,
and Adriano should not have been dismissed, since they failed to assert
their right to speedy trial within a reasonable period of time. She points
out that the accused failed to raise a protest during the dormancy of the
criminal case against them, and that they asserted their right only after
the trial court had dismissed the case against their co-accused
Concepcion. Petitioner also emphasizes that the trial court denied the
respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and
Adriano, because it found that the prosecution could not be faulted for the
delay in the movement of this case when the original records and the
evidence it may require were not at its disposal as these were in the
Court of Appeals.[51]
The right of the accused to a speedy trial has been enshrined in Sections
14(2) and 16, Article III of the 1987 Constitution. [52] This right requires that
there be a trial free from vexatious, capricious or oppressive delays.
[53]
The right is deemed violated when the proceeding is attended with
unjustified postponements of trial, or when a long period of time is
allowed to elapse without the case being tried and for no cause or
justifiable motive.[54] In determining the right of the accused to speedy
trial, courts should do more than a mathematical computation of the
number of postponements of the scheduled hearings of the case. [55] The
conduct of both the prosecution and the defense must be weighed.
[56]
Also to be considered are factors such as the length of delay, the
assertion or non-assertion of the right, and the prejudice wrought upon
the defendant.[57]
We have consistently ruled in a long line of cases that a dismissal of the
case pursuant to the right of the accused to speedy trial is tantamount to
acquittal.[58] As a consequence, an appeal or a reconsideration of the
dismissal would amount to a violation of the principle of double jeopardy.
[59]
As we have previously discussed, however, where the dismissal of the
case is capricious, certiorari lies.[60] The rule on double jeopardy is not
triggered when a petition challenges the validity of the order of dismissal
instead of the correctness thereof.[61] Rather, grave abuse of discretion
amounts to lack of jurisdiction, and lack of jurisdiction prevents double
jeopardy from attaching.[62]
We do not see grave abuse of discretion in the CAs dismissal of the case
against accused Escalona, Ramos, Saruca, and Adriano on the basis of
the violation of their right to speedy trial. The court held thus:

An examination of the procedural history of this case would reveal that

the following factors contributed to the slow progress of the proceedings
in the case below:

remained dormant for a considerable length of time. This prolonged

inactivity whatsoever is precisely the kind of delay that the constitution
frowns upon x x x.[63] (Emphasis supplied)

xxxxxxxxx

This Court points out that on 10 January 1992, the final amended
Information was filed against Escalona, Ramos, Saruca, Ampil, S.
Fernandez, Adriano, Cabangon, Concepcion, and De Vera. [64] On 29
November 1993, they were all arraigned. [65] Unfortunately, the initial trial
of the case did not commence until 28 March 2005 or almost 12 years
after arraignment.[66]

5) The fact that the records of the case were elevated to the Court of
Appeals and the prosecutions failure to comply with the order of the court
a quo requiring them to secure certified true copies of the same.
xxxxxxxxx
While we are prepared to concede that some of the foregoing factors that
contributed to the delay of the trial of the petitioners are justifiable, We
nonetheless hold that their right to speedy trial has been utterly violated
in this case x x x.
xxxxxxxxx
[T]he absence of the records in the trial court [was] due to the fact that
the records of the case were elevated to the Court of Appeals, and
the prosecutions failure to comply with the order of the court a quo
requiring it to secure certified true copies of the same. What is
glaring from the records is the fact that as early as September 21, 1995,
the court a quo already issued an Order requiring the prosecution,
through the Department of Justice, to secure the complete records of the
case from the Court of Appeals. The prosecution did not comply with the
said Order as in fact, the same directive was repeated by the court a quo
in an Order dated December 27, 1995. Still, there was no compliance on
the part of the prosecution. It is not stated when such order was complied
with. It appears, however, that even until August 5, 2002, the said
records were still not at the disposal of the trial court because the
lack of it was made the basis of the said court in granting the motion to
dismiss filed by co-accused Concepcion x x x.
xxxxxxxxx
It is likewise noticeable that from December 27, 1995, until August 5,
2002, or for a period of almost seven years, there was no action at
all on the part of the court a quo. Except for the pleadings filed by
both the prosecution and the petitioners, the latest of which was on
January 29, 1996, followed by petitioner Sarucas motion to set case for
trial on August 17, 1998 which the court did not act upon, the case

As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained

interval or inactivity of the Sandiganbayan for close to five years since the
arraignment of the accused amounts to an unreasonable delay in the
disposition of cases a clear violation of the right of the accused to a
speedy disposition of cases.[67] Thus, we held:
The delay in this case measures up to the unreasonableness of the delay
in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the
Court found the delay of six years by the Ombudsman in resolving
the criminal complaints to be violative of the constitutionally
guaranteed right to a speedy disposition of cases; similarly, in Roque
vs. Office of the Ombudsman, where the Court held that the delay of
almost six years disregarded the Ombudsman's duty to act
promptly on complaints before him; and in Cervantes vs.
Sandiganbayan, where the Court held that the Sandiganbayan gravely
abused its discretion in not quashing the information which was
filed six years after the initiatory complaint was filed and thereby
depriving petitioner of his right to a speedy disposition of the
case. So it must be in the instant case, where the reinvestigation by
the Ombudsman has dragged on for a decade already.[68] (Emphasis
supplied)
From the foregoing principles, we affirm the ruling of the CA in CA-G.R.
SP No. 89060 that accused Escalona et al.s right to speedy trial was
violated. Since there is nothing in the records that would show that the
subject of this Petition includes accused Ampil, S. Fernandez, Cabangon,
and De Vera, the effects of this ruling shall be limited to
accused Escalona, Ramos, Saruca, and Adriano.
G.R. No. 154954 (People v. Court of Appeals)

The rule on double jeopardy is one of the pillars of our criminal justice
system. It dictates that when a person is charged with an offense, and the
case is terminated either by acquittal or conviction or in any other manner
without the consent of the accused the accused cannot again be charged
with the same or an identical offense.[69] This principle is founded upon
the law of reason, justice and conscience.[70] It is embodied in the civil law
maxim non bis in idem found in the common law of England and
undoubtedly in every system of jurisprudence.[71] It found expression in
the Spanish Law, in the Constitution of the United States, and in our own
Constitution as one of the fundamental rights of the citizen, [72] viz:
Article III Bill of Rights
Section 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
Rule 117, Section 7 of the Rules of Court, which implements this
particular constitutional right, provides as follows: [73]
SEC. 7. Former conviction or acquittal; double jeopardy. When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint
or information.
The rule on double jeopardy thus prohibits the state from appealing the
judgment in order to reverse the acquittal or to increase the penalty
imposed either through a regular appeal under Rule 41 of the Rules of
Court or through an appeal by certiorari on pure questions of law under
Rule 45 of the same Rules.[74] The requisites for invoking double jeopardy
are the following: (a) there is a valid complaint or information; (b) it is filed
before a competent court; (c) the defendant pleaded to the charge; and
(d) the defendant was acquitted or convicted, or the case against him or
her was dismissed or otherwise terminated without the defendants
express consent.[75]

As we have reiterated in People v. Court of Appeals and Galicia, [a]

verdict of acquittal is immediately final and a reexamination of the merits
of such acquittal, even in the appellate courts, will put the accused in
jeopardy for the same offense. The finality-of-acquittal doctrine has
several avowed purposes. Primarily, it prevents the State from using its
criminal processes as an instrument of harassment to wear out the
accused by a multitude of cases with accumulated trials. It also serves
the additional purpose of precluding the State, following an acquittal, from
successively retrying the defendant in the hope of securing a conviction.
And finally, it prevents the State, following conviction, from retrying the
defendant again in the hope of securing a greater penalty.[76] We further
stressed that an acquitted defendant is entitled to the right of repose as a
direct consequence of the finality of his acquittal. [77]
This prohibition, however, is not absolute. The state may challenge the
lower courts acquittal of the accused or the imposition of a lower penalty
on the latter in the following recognized exceptions: (1) where the
prosecution is deprived of a fair opportunity to prosecute and prove its
case, tantamount to a deprivation of due process;[78] (2) where there is a
finding of mistrial;[79] or (3) where there has been a grave abuse of
discretion.[80]
The third instance refers to this Courts judicial power under Rule 65 to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. [81] Here, the party asking for the review
must show the presence of a whimsical or capricious exercise of
judgment equivalent to lack of jurisdiction; a patent and gross abuse of
discretion amounting to an evasion of a positive duty or to a virtual refusal
to perform a duty imposed by law or to act in contemplation of law; an
exercise of power in an arbitrary and despotic manner by reason of
passion and hostility;[82] or a blatant abuse of authority to a point so grave
and so severe as to deprive the court of its very power to dispense
justice.[83] In such an event, the accused cannot be considered to be at
risk of double jeopardy.[84]
The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks
the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of
Tecson et al. for the lesser crime of slight physical injuries, both on the
basis of a misappreciation of facts and evidence. According to the
Petition, the decision of the Court of Appeals is not in accordance with
law because private complainant and petitioner were denied due process
of law when the public respondent completely ignored the a) Position
Paper x x x b) the Motion for Partial Reconsideration x x x and c) the

petitioners Comment x x x.[85] Allegedly, the CA ignored evidence when it

adopted the theory of individual responsibility; set aside the finding of
conspiracy by the trial court; and failed to apply Article 4 of the Revised
Penal Code.[86] The Solicitor General also assails the finding that the
physical blows were inflicted only by Dizon and Villareal, as well as the
appreciation of Lenny Villas consent to hazing.[87]
In our view, what the Petition seeks is that we reexamine, reassess, and
reweigh the probative value of the evidence presented by the parties.
[88]
In People v. Maquiling, we held that grave abuse of discretion cannot
be attributed to a court simply because it allegedly misappreciated the
facts and the evidence.[89] Mere errors of judgment are correctible by an
appeal or a petition for review under Rule 45 of the Rules of Court, and
not by an application for a writ of certiorari.[90] Therefore, pursuant to the
rule on double jeopardy, we are constrained to deny the
Petition contra Victorino et al. the 19 acquitted fraternity members.
We, however, modify the assailed judgment as regards Tecson, Ama,
Almeda, and Bantug the four fraternity members convicted of slight
physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy
similarly applies when the state seeks the imposition of a higher penalty
against the accused.[91]We have also recognized, however,
that certiorari may be used to correct an abusive judgment upon a clear
demonstration that the lower court blatantly abused its authority to a point
so grave as to deprive it of its very power to dispense justice. [92] The
present case is one of those instances of grave abuse of discretion.
In imposing the penalty of slight physical injuries on Tecson, Ama,
Almeda, and Bantug, the CA reasoned thus:
Based on the medical findings, it would appear that with the exclusion
of the fatal wounds inflicted by the accused Dizon and Villareal,
the injuries sustained by the victim as a result of the physical
punishment heaped on him were serious in nature. However, by
reason of the death of the victim, there can be no precise means to
determine the duration of the incapacity or the medical attendance
required. To do so, at this stage would be merely speculative. In a
prosecution for this crime where the category of the offense and the
severity of the penalty depend on the period of illness or incapacity for
labor, the length of this period must likewise be proved beyond
reasonable doubt in much the same manner as the same act charged

[People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof
of the said period is absent, the crime committed should be deemed
only as slight physical injuries [People v. De los Santos, CA, 59 O.G.
4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is
constrained to rule that the injuries inflicted by the appellants, Tecson,
Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature.
[93]
(Emphasis supplied and citations included)
The appellate court relied on our ruling in People v. Penesa[94] in finding
that the four accused should be held guilty only of slight physical injuries.
According to the CA, because of the death of the victim, there can be no
precise means to determine the duration of the incapacity or medical
attendance required.[95] The reliance on Penesa was utterly misplaced. A
review of that case would reveal that the accused therein was guilty
merely of slight physical injuries, because the victims injuries neither
caused incapacity for labor nor required medical attendance.
[96]
Furthermore, he did not die.[97] His injuries were not even serious.
[98]
Since Penesa involved a case in which the victim allegedly suffered
physical injuries and not death, the ruling cited by the CA was patently
inapplicable.
On the contrary, the CAs ultimate conclusion that Tecson, Ama, Almeda,
and Bantug were liable merely for slight physical injuries grossly
contradicts its own findings of fact. According to the court, the four
accused were found to have inflicted more than the usual
punishment undertaken during such initiation rites on the person of Villa.
[99]
It then adopted the NBI medico-legal officers findings that the
antecedent cause of Lenny Villas death was the multiple traumatic
injuries he suffered from the initiation rites.[100]Considering that the CA
found that the physical punishment heaped on [Lenny Villa was]
serious in nature,[101] it was patently erroneous for the court to limit the
criminal liability to slight physical injuries, which is a light felony.
Article 4(1) of the Revised Penal Code dictates that the perpetrator shall
be liable for the consequences of an act, even if its result is different from
that intended. Thus, once a person is found to have committed an initial
felonious act, such as the unlawful infliction of physical injuries that
results in the death of the victim, courts are required to automatically
apply the legal framework governing the destruction of life. This rule is
mandatory, and not subject to discretion.
The CAs application of the legal framework governing physical injuries
punished under Articles 262 to 266 for intentional felonies and Article 365
for culpable felonies is therefore tantamount to a whimsical, capricious,

and abusive exercise of judgment amounting to lack of

jurisdiction. According to the Revised Penal Code, the mandatory and
legally imposable penalty in case the victim dies should be based on the
framework governing the destruction of the life of a person, punished
under Articles 246 to 261 for intentional felonies and Article 365 for
culpable felonies, and not under the aforementioned provisions. We
emphasize that these two types of felonies are distinct from and legally
inconsistent with each other, in that the accused cannot be held criminally
liable for physical injuries when actual death occurs.[102]
Attributing criminal liability solely to Villareal and Dizon as if only their
acts, in and of themselves, caused the death of Lenny Villa is contrary to
the CAs own findings. From proof that the death of the victim was the
cumulative effect of the multiple injuries he suffered,[103] the only logical
conclusion is that criminal responsibility should redound to all those who
have been proven to have directly participated in the infliction of physical
injuries on Lenny. The accumulation of bruising on his body caused him
to suffer cardiac arrest. Accordingly, we find that the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in finding
Tecson, Ama, Almeda, and Bantug criminally liable for slight physical
injuries. As an allowable exception to the rule on double jeopardy, we
therefore give due course to the Petition in G.R. No. 154954.
Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time)
punishable as a crime, the intentional infliction of physical injuries on Villa
was nonetheless a felonious act under Articles 263 to 266 of the Revised
Penal Code. Thus, in ruling against the accused, the court a quo found
that pursuant to Article 4(1) of the Revised Penal Code, the accused
fraternity members were guilty of homicide, as it was the direct, natural
and logical consequence of the physical injuries they had intentionally
inflicted.[104]
The CA modified the trial courts finding of criminal liability. It ruled that
there could have been no conspiracy since the neophytes, including
Lenny Villa, had knowingly consented to the conduct of hazing during
their initiation rites. The accused fraternity members, therefore, were
liable only for the consequences of their individual acts. Accordingly, 19 of
the accused Victorino et al. were acquitted; 4 of them Tecson et al. were
found guilty of slight physical injuries; and the remaining 2 Dizon and
Villareal were found guilty of homicide.

The issue at hand does not concern a typical criminal case wherein the
perpetrator clearly commits a felony in order to take revenge upon, to
gain advantage over, to harm maliciously, or to get even with, the victim.
Rather, the case involves an ex ante situation in which a man driven by
his own desire to join a society of men pledged to go through physically
and psychologically strenuous admission rituals, just so he could enter
the fraternity. Thus, in order to understand how our criminal laws apply to
such situation absent the Anti-Hazing Law, we deem it necessary to make
a brief exposition on the underlying concepts shaping intentional felonies,
as well as on the nature of physical and psychological initiations widely
known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of thought.
[105]
The classical theory posits that a human person is essentially a moral
creature with an absolute free will to choose between good and evil. [106] It
asserts that one should only be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired. [107]The basic
postulate of the classical penal system is that humans are rational and
calculating beings who guide their actions with reference to the principles
of pleasure and pain.[108] They refrain from criminal acts if threatened with
punishment sufficient to cancel the hope of possible gain or advantage in
committing the crime.[109] Here, criminal liability is thus based on the free
will and moral blame of the actor.[110] The identity of mens rea defined as a
guilty mind, a guilty or wrongful purpose or criminal intent is the
predominant consideration.[111] Thus, it is not enough to do what the law
prohibits.[112] In order for an intentional felony to exist, it is necessary that
the act be committed by means of dolo or malice.[113]
The term dolo or malice is a complex idea involving the elements
of freedom, intelligence, and intent.[114] The first element, freedom, refers
to an act done with deliberation and with power to choose between two
things.[115] The second element, intelligence, concerns the ability to
determine the morality of human acts, as well as the capacity to
distinguish between a licit and an illicit act.[116] The last element, intent,
involves an aim or a determination to do a certain act.[117]
The element of intent on which this Court shall focus is described as the
state of mind accompanying an act, especially a forbidden act.[118] It refers
to the purpose of the mind and the resolve with which a person proceeds.
[119]
It does not refer to mere will, for the latter pertains to the act,
while intent concerns the result of the act.[120] While motive is the moving
power that impels one to action for a definite result, intent is the purpose

of using a particular means to produce the result.[121] On the other hand,

the term felonious means, inter alia, malicious, villainous, and/or
proceeding from an evil heart or purpose.[122] With these elements taken
together, the requirement of intent in intentional felony must refer to
malicious intent, which is a vicious and malevolent state of mind
accompanying a forbidden act. Stated otherwise, intentional felony
requires the existence of dolus malus that the act or omission be done
willfully, maliciously, with deliberate evil intent, and with malice
aforethought.[123] The maxim is actus non facit reum, nisi mens sit rea a
crime is not committed if the mind of the person performing the act
complained of is innocent.[124] As is required of the other elements of a
felony, the existence of malicious intent must be proven beyond
reasonable doubt.[125]

The notion of hazing is not a recent development in our society.[135] It is

said that, throughout history, hazing in some form or another has been
associated with organizations ranging from military groups to indigenous
tribes.[136] Some say that elements of hazing can be traced back to the
Middle Ages, during which new students who enrolled in European
universities worked as servants for upperclassmen. [137] It is believed that
the concept of hazing is rooted in ancient Greece, [138] where young
men recruited into the military were tested with pain or challenged to
demonstrate the limits of their loyalty and to prepare the recruits for
battle.[139] Modern fraternities and sororities espouse some connection to
these values of ancient Greek civilization. [140] According to a scholar, this
concept lends historical legitimacy to a tradition or ritual whereby
prospective members are asked to prove their worthiness and loyalty to
the organization in which they seek to attain membership through hazing.

In turn, the existence of malicious intent is necessary in order for

conspiracy to attach. Article 8 of the Revised Penal Code which provides
that conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it is to be interpreted to refer only to felonies committed by means
of doloor malice. The phrase coming to an agreement connotes the
existence of a prefaced intent to cause injury to another, an element
present only in intentional felonies. In culpable felonies or criminal
negligence, the injury inflicted on another is unintentional, the wrong done
being simply the result of an act performed without malice or criminal
design.[126] Here, a person performs an initial lawful deed; however, due to
negligence, imprudence, lack of foresight, or lack of skill, the deed results
in a wrongful act.[127] Verily, a deliberate intent to do an unlawful act, which
is a requisite in conspiracy, is inconsistent with the idea of a felony
committed by means of culpa.[128]

[141]

The presence of an initial malicious intent to commit a felony is thus a

vital ingredient in establishing the commission of the intentional felony of
homicide.[129] Being mala in se, the felony of homicide requires the
existence of malice or dolo[130] immediately before or simultaneously with
the infliction of injuries.[131] Intent to kill or animus interficendi cannot and
should not be inferred, unless there is proof beyond reasonable doubt of
such intent.[132] Furthermore, the victims death must not have been the
product of accident, natural cause, or suicide. [133] If death resulted from an
act executed without malice or criminal intent but with lack of foresight,
carelessness, or negligence the act must be qualified as reckless or
simple negligence or imprudence resulting in homicide. [134]
Hazing and other forms of initiation rites

Thus, it is said that in the Greek fraternity system, custom requires a

student wishing to join an organization to receive an invitation in order to
be a neophyte for a particular chapter.[142] The neophyte period is usually
one to two semesters long.[143] During the program, neophytes are
required to interview and to get to know the active members of the
chapter; to learn chapter history; to understand the principles of the
organization; to maintain a specified grade point average; to participate in
the organizations activities; and to show dignity and respect for their
fellow neophytes, the organization, and its active and alumni members.
[144]
Some chapters require the initiation activities for a recruit to involve
hazing acts during the entire neophyte stage.[145]
Hazing, as commonly understood, involves an initiation rite or ritual that
serves as prerequisite for admission to an organization. [146] In hazing, the
recruit, pledge, neophyte, initiate, applicant or any other term by which
the organization may refer to such a person is generally placed in
embarrassing or humiliating situations, like being forced to do menial,
silly, foolish, or other similar tasks or activities.[147] It encompasses
different forms of conduct that humiliate, degrade, abuse, or physically
endanger those who desire membership in the organization. [148] These
acts usually involve physical or psychological suffering or injury.[149]
The concept of initiation rites in the country is nothing new. In fact, more
than a century ago, our national hero Andres Bonifacio organized a
secret society named Kataastaasan Kagalanggalangang Katipunan ng
mga Anak ng Bayan (The Highest and Most Venerable Association of the
Sons and Daughters of the Nation). [150] The Katipunan, or KKK, started as
a small confraternity believed to be inspired by European Freemasonry,

as well as by confraternities or sodalities approved by the Catholic

Church.[151] The Katipunans ideology was brought home to each member
through the societys initiation ritual. [152] It is said that initiates were brought
to a dark room, lit by a single point of illumination, and were asked a
series of
questions to determine their fitness, loyalty, courage, and resolve.
[153]
They were made to go through vigorous trials such as pagsuot sa
isang lungga or [pagtalon] sa balon.[154] It would seem that they were also
made to withstand the blow of pangherong bakal sa pisngi and to endure
a matalas na punyal.[155] As a final step in the ritual, the
neophyte Katipunero was made to sign membership papers with the his
own blood.[156]
It is believed that the Greek fraternity system was transported by the
Americans to the Philippines in the late 19th century. As can be seen in
the following instances, the manner of hazing in the United States was
jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.
Early in 1865, upperclassmen at West Point Academy forced the fourth
classmen to do exhausting physical exercises that sometimes resulted in
permanent physical damage; to eat or drink unpalatable foods; and in
various ways to humiliate themselves.[157] In 1901, General Douglas
MacArthur got involved in a congressional investigation of hazing at the
academy during his second year at West Point.[158]
In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidatevictim was injured during the shriners hazing event, which was part of the
initiation ceremonies for Hejaz membership. [159] The ritual involved what
was known as the mattress-rotating barrel trick.[160] It required each
candidate to slide down an eight to nine-foot-high metal board onto
connected mattresses leading to a barrel, over which the candidate was
required to climb.[161] Members of Hejaz would stand on each side of the
mattresses and barrel and fun-paddle candidates en route to the barrel.
[162]

In a video footage taken in 1991, U.S. Marine paratroopers in Camp

Lejeune, North Carolina, were seen performing a ceremony in which they
pinned paratrooper jump wings directly onto the neophyte paratroopers
chests.[163] The victims were shown writhing and crying out in pain as
others pounded the spiked medals through the shirts and into the chests
of the victims.[164]

In State v. Allen, decided in 1995, the Southeast Missouri State University

chapter of Kappa Alpha Psi invited male students to enter into a
pledgeship program.[165] The fraternity members subjected the pledges to
repeated physical abuse including repeated, open-hand strikes at the
nape, the chest, and the back; caning of the bare soles of the feet and
buttocks; blows to the back with the use of a heavy book and a cookie
sheet while the pledges were on their hands and knees; various kicks
and punches to the body; and body slamming, an activity in which active
members of the fraternity lifted pledges up in the air and dropped them to
the ground.[166] The fraternity members then put the pledges through a
seven-station circle of physical abuse.[167]
In Ex Parte Barran, decided in 1998, the pledge-victim went
through hazing by fraternity members of the Kappa Alpha Order at the
Auburn University in Alabama.[168]The hazing included the following: (1)
having to dig a ditch and jump into it after it had been filled with water,
urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the
buttocks; (3) being pushed and kicked, often onto walls or into pits and
trash cans; (4) eating foods like peppers, hot sauce, butter, and yerks (a
mixture of hot sauce, mayonnaise, butter, beans, and other items); (5)
doing chores for the fraternity and its members, such as cleaning the
fraternity house and yard, being designated as driver, and running
errands; (6) appearing regularly at 2 a.m. meetings, during which the
pledges would be hazed for a couple of hours; and (7) running the
gauntlet, during which the pledges were pushed, kicked, and hit as they
ran down a hallway and descended down a flight of stairs. [169]
In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim
Sylvester Lloyd was accepted to pledge at the Cornell University chapter
of the Alpha Phi Alpha Fraternity.[170] He participated in initiation activities,
which included various forms of physical beatings and torture,
psychological coercion and embarrassment. [171]
In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiatevictim suffered injuries from hazing activities during the fraternitys
initiation rites.[172] Kenner and the other initiates went through
psychological and physical hazing, including being paddled on the
buttocks for more than 200 times.[173]
In Morton v. State, Marcus Jones a university student in Florida sought
initiation into the campus chapter of the Kappa Alpha Psi Fraternity during
the 2005-06 academic year.[174] The pledges efforts to join the fraternity
culminated in a series of initiation rituals conducted in four nights. Jones,
together with other candidates, was blindfolded, verbally harassed, and

caned on his face and buttocks.[175] In these rituals described as

preliminaries, which lasted for two evenings, he received approximately
60 canings on his buttocks.[176] During the last two days of the hazing, the
rituals intensified.[177] The pledges sustained roughly 210 cane strikes
during the four-night initiation.[178] Jones and several other candidates
passed out.[179]
The purported raison dtre behind hazing practices is the proverbial birth
by fire, through which the pledge who has successfully withstood the
hazing proves his or her worth.[180] Some organizations even believe that
hazing is the path to enlightenment. It is said that this process enables
the organization to establish unity among the pledges and, hence,
reinforces and ensures the future of the organization.[181] Alleged benefits
of joining include leadership opportunities; improved academic
performance; higher self-esteem; professional networking opportunities;
and the esprit dcorp associated with close, almost filial, friendship and
common cause.[182]
Anti-Hazing laws in the U.S.
The first hazing statute in the U.S. appeared in 1874 in response to
hazing in the military.[183] The hazing of recruits and plebes in the armed
services was so prevalent that Congress prohibited all forms of
military hazing, harmful or not.[184] It was not until 1901 that Illinois passed
the first state anti-hazing law, criminalizing conduct whereby any one
sustains an injury to his [or her] person therefrom. [185]
However, it was not until the 1980s and 1990s, due in large part to the
efforts of the Committee to Halt Useless College Killings and other similar
organizations, that states increasingly began to enact legislation
prohibiting and/or criminalizing hazing. [186] As of 2008, all but six states
had enacted criminal or civil statutes proscribing hazing. [187]Most antihazing laws in the U.S. treat hazing as a misdemeanor and carry
relatively light consequences for even the most severe situations. [188] Only
a few states with anti-hazing laws consider hazing as a felony in case
death or great bodily harm occurs.[189]
Under the laws of Illinois, hazing is a Class A misdemeanor, except
hazing that results in death or great bodily harm, which is a Class 4
felony.[190] In a Class 4 felony, a sentence of imprisonment shall be for a
term of not less than one year and not more than three years. [191] Indiana
criminal law provides that a person who recklessly, knowingly, or
intentionally

performs hazing that results in serious bodily injury to a person commits

criminal recklessness, a Class D felony.[192]
The offense becomes a Class C felony if committed by means of a
deadly weapon.[193] As an element of a Class C felony criminal
recklessness resulting in serious bodily injury, death falls under the
category of serious bodily injury.[194] A person who commits a Class C
felony is imprisoned for a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years. [195] Pursuant to
Missouri law, hazing is a Class A misdemeanor, unless the act creates a
substantial risk to the life of the student or prospective member, in which
case it becomes a Class C felony.[196] A Class C felony provides for an
imprisonment term not to exceed seven years. [197]
In Texas, hazing that causes the death of another is a state jail felony.
[198]
An individual adjudged guilty of a state jail felony is punished by
confinement in a state jail for any term of not more than two years or not
less than 180 days.[199] Under Utah law, if hazing results in serious bodily
injury, the hazer is guilty of a third-degree felony.[200] A person who has
been convicted of a third-degree felony may be sentenced to
imprisonment for a term not to exceed five years.[201] West Virginia law
provides that if the act of hazing would otherwise be deemed a felony, the
hazer may be found guilty thereof and subject to penalties provided
therefor.[202] In Wisconsin, a person is guilty of a Class G felony if hazing
results in the death of another.[203] A
Class G felony carries a fine not to exceed $25,000 or imprisonment not
to exceed 10 years, or both.[204]
In certain states in the U.S., victims of hazing were left with limited
remedies, as there was no hazing statute.[205] This situation was
exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry
Ballous family resorted to a civil action for wrongful death, since there
was no anti-hazing statute in South Carolina until 1994. [206]
The existence of animus interficendi or intent to kill not proven
beyond reasonable doubt
The presence of an ex ante situation in this case, fraternity initiation rites
does not automatically amount to the absence of malicious intent
or dolus malus. If it is proven beyond reasonable doubt that the
perpetrators were equipped with a guilty mind whether or not there is a
contextual background or factual premise they are still criminally liable for
intentional felony.

The trial court, the CA, and the Solicitor General are all in agreement that
with the exception of Villareal and Dizon accused Tecson, Ama, Almeda,
and Bantug did not have the animus interficendi or intent to kill Lenny
Villa or the other neophytes. We shall no longer disturb this finding.

Witness Upon arrival, we were instructed to bow our head down and to
link our arms and then the driver of the van and other members of the
Aquilans who were inside left us inside the van, sir.
xxxxxxxxx

As regards Villareal and Dizon, the CA modified the Decision of the trial
court and found that the two accused had the animus interficendi or intent
to kill Lenny Villa, not merely to inflict physical injuries on him. It justified
its finding of homicide against Dizon by holding that he had apparently
been motivated by ill will while beating up Villa. Dizon kept repeating that
his fathers parking space had been stolen by the victims father.[207] As to
Villareal, the court said that the accused suspected the family of
Bienvenido Marquez, one of the neophytes, to have had a hand in the
death of Villareals brother.[208] The CA then ruled as follows:
The two had their own axes to grind against Villa and Marquez. It
was very clear that they acted with evil and criminal intent. The evidence
on this matter is unrebutted and so for the death of
Villa, appellants Dizon and Villareal must and should face the
consequence of their acts, that is, to be held liable for the crime of
homicide.[209] (Emphasis supplied)
We cannot subscribe to this conclusion.
The appellate court relied mainly on the testimony of Bienvenido Marquez
to determine the existence of animus interficendi. For a full appreciation
of the context in which the supposed utterances were made, the Court
deems it necessary to reproduce the relevant portions of witness
Marquezs testimony:

Witness We heard voices shouted outside the van to the effect, Villa
akin ka, Asuncion Patay ka and the people outside pound the van,
rock the van, sir.
Atty. Tadiar Will you please recall in what tone of voice and how strong a
voice these remarks uttered upon your arrival?
Witness Some were almost shouting, you could feel the sense of
excitement in their voices, sir.
xxxxxxxxx
Atty. Tadiar During all these times that the van was being rocked through
and through, what were the voices or utterances that you heard?
Witness Villa akin ka, Asuncion patay ka, Recinto patay ka sa amin,
etc., sir.
Atty. Tadiar And those utterances and threats, how long did they continue
during the rocking of the van which lasted for 5 minutes?
xxxxxxxxx

Witness We were brought up into [Michael Musngis] room and we were

briefed as to what to expect during the next three days and we were told
the members of the fraternity and their batch and we were also told about
the fraternity song, sir.

Witness Even after they rocked the van, we still kept on hearing
voices, sir.

xxxxxxxxx

Atty. Tadiar During the time that this rounds [of physical beating] were
being inflicted, was there any utterances by anybody?

Witness We were escorted out of [Michael Musngis] house and we were

made to ride a van and we were brought to another place in Kalookan
City which I later found to be the place of Mariano Almeda, sir.
xxxxxxxxx

xxxxxxxxx

Witness Yes sir. Some were piercing, some were discouraging, and
some were encouraging others who were pounding and beating us,
it was just like a fiesta atmosphere, actually some of them enjoyed
looking us being pounded, sir.

Atty. Tadiar Do you recall what were those voices that you heard?

xxxxxxxx

Witness One particular utterance always said was, they asked us

whether matigas pa yan, kayang-kaya pa niyan.

Atty. Tadiar You mentioned about Dizon in particular mentioning that

Lenny Villas father stole the parking space allotted for his father, do
you recall who were within hearing distance when that utterance
was made?

Atty. Tadiar Do you know who in particular uttered those particular words
that you quote?

Witness Yes, sir. All of the neophytes heard that utterance, sir.
Witness I cannot particularly point to because there were utterances
simultaneously, I could not really pin point who uttered those words, sir.
xxxxxxxxx
Atty. Tadiar Were there any utterances that you heard during the conduct
of this Bicol Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court what were the
utterances that you remember?
Witness For example, one person particularly Boyet Dizon stepped on
my thigh, he would say that and I quote ito, yung pamilya nito ay
pinapatay yung kapatid ko, so that would in turn sort of justifying him in
inflicting more serious pain on me. So instead of just walking, he would
jump on my thighs and then after on was Lenny Villa. He was saying
to the effect that this guy, his father stole the parking space of my
father, sir. So, thats why he inflicted more pain on Villa and that went on,
sir.
Atty. Tadiar And you were referring to which particular accused
Witness Boyet Dizon, sir.
Atty. Tadiar When Boyet Dizon at that particular time was accusing you of
having your family have his brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was
just making it up sir. So he said that I knew nothing of that incident.
However, he just in fact after the Bicol Express, he kept on uttering those
words/statements so that it would in turn justify him and to give me harder
blows, sir

xxxxxxxxx
Witness There were different times made this accusation so there were
different people who heard from time to time, sir.
xxxxxxxxx
Atty. Tadiar Can you tell the Honorable Court when was the next
accusation against Lenny Villas father was made?
Witness When we were line up against the wall, Boyet Dizon came near
to us and when Lenny Villas turn, I heard him uttered those
statements, sir.
Atty. Tadiar What happened after he made this accusation to Lenny Villas
father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villas thighs and
sometime he stand up and he kicked his thighs and sometimes jumped at
it, sir.
xxxxxxxxx
Atty. Tadiar We would go on to the second day but not right now. You
mentioned also that accusations made by Dizon you or your family
had his brother killed, can you inform this Honorable Court what
exactly were the accusations that were charged against you while
inflicting blows upon you in particular?

Witness While he was inflicting blows upon me, he told me in particular if

I knew that his family who had his brother killed, and he said that his
brother was an NPA, sir so I knew that it was just a story that he made
up and I said that I knew nothing about it and he continued inflicting
blows on me, sir. And another incident was when a talk was being
given, Dizon was on another part of the pelota court and I was sort of
looking and we saw that he was drinking beer, and he said and I
quote: Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw
yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin,
sir.

Witness Yes, sir.

Judge Purisima You were also told beforehand that there would be
physical contact?
Witness Yes, sir at the briefing.
xxxxxxxxx

Witness Thats all, sir.

Witness Yes, sir, because they informed that we could immediately go

back to school. All the bruises would be limited to our arms and legs, sir.
So, if we wear the regular school uniforms like long sleeves, it would be
covered actually so we have no thinking that our face would be slapped,
sir.

Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor
or a physician came around as promised to you earlier?

Judge Purisima So, you mean to say that beforehand that you would
have bruises on your body but that will be covered?

Witness No, sir.[210] (Emphasis supplied)

Witness Yes, sir.

On cross-examination, witness Bienvenido Marquez testified thus:

JudgePurisima So, what kind of physical contact or implements that you

expect that would create bruises to your body?

Atty. Tadiar What else?

Judge Purisima When you testified on direct examination Mr. Marquez,

have you stated that there was a briefing that was conducted immediately
before your initiation as regards to what to expect during the initiation, did
I hear you right?
Witness Yes, sir.

Witness At that point I am already sure that there would be hitting by a

paddling or paddle, sir.
xxxxxxxx

Judge Purisima Who did the briefing?

Judge Purisima Now, will you admit Mr. Marquez that much of
the initiation procedures is psychological in nature?

Witness Mr. Michael Musngi, sir and Nelson Victorino.

Witness Combination, sir.[211] (Emphasis supplied)

Judge Purisima Will you kindly tell the Honorable Court what they told
you to expect during the initiation?

xxxxxxxxx

Witness They told us at the time we would be brought to a particular

place, we would be mocked at, sir.
Judge Purisima So, you expected to be mocked at, ridiculed,
humiliated etc., and the likes?

Atty. Jimenez The initiation that was conducted did not consist only of
physical initiation, meaning body contact, is that correct?
Witness Yes, sir.
Atty. Jimenez Part of the initiation was the so-called psychological
initiation, correct?

Witness Yes, sir.

Atty. Jimenez And this consisted of making you believe of things
calculated to terrify you, scare you, correct?

Atty. Jimenez But did you not say earlier that you [were] subjected to the
same forms of initiation by all the initiating masters? You said that earlier,
right?
Witness Yes, sir.

Witness Yes, sir.

Atty. Jimenez In other words, the initiating masters made belief
situation intended to, I repeat, terrify you, frighten you, scare you
into perhaps quitting the initiation, is this correct?
Witness Sometimes sir, yes.
Atty. Jimenez You said on direct that while Mr. Dizon was initiating you,
he said or he was supposed to have said according to you that your
family were responsible for the killing of his brother who was an NPA, do
you remember saying that?

Atty. Jimenez Are you saying also that the others who jumped on you or
kicked you said something similar as was told to you by Mr. Dizon?
Witness No, sir.
Atty. Jimenez But the fact remains that in the Bicol Express for instance,
the masters would run on your thighs, right?
Witness Yes, sir.
Atty. Jimenez This was the regular procedure that was followed by the
initiating masters not only on you but also on the other neophytes?

Witness Yes, sir.

Witness Yes, sir.
Atty. Jimenez You also said in connection with that statement said to you
by Dizon that you did not believe him because that is not true,
correct?
Witness Yes, sir.
Atty. Jimenez In other words, he was only psychologizing you
perhaps, the purpose as I have mentioned before, terrifying you,
scaring you or frightening you into quitting the initiation, this is
correct?
Witness No, sir, perhaps it is one but the main reason, I think, why
he was saying those things was because he wanted to inflict injury.
Atty. Jimenez He did not tell that to you. That is your only perception,
correct?

Atty. Jimenez In other words, it is fair to say that whatever forms of

initiation was administered by one master, was also administered by
one master on a neophyte, was also administered by another master
on the other neophyte, this is correct?
Witness Yes, sir.[212] (Emphasis supplied)
According to the Solicitor General himself, the ill motives attributed by the
CA to Dizon and Villareal were baseless,[213] since the statements of the
accused were just part of the psychological initiation calculated to instill
fear on the part of the neophytes; that [t]here is no element of truth in it as
testified by Bienvenido Marquez; and that the harsh words uttered by
Petitioner and Villareal are part of tradition concurred and accepted by all
the fraternity members during their initiation rites.[214]
We agree with the Solicitor General.

Witness No, sir, because at one point, while he was telling this to
Villareal, he was hitting me.

The foregoing testimony of witness Marquez reveals a glaring mistake of

substantial proportion on the part of the CA it mistook the utterances of
Dizon for those of Villareal. Such inaccuracy cannot be tolerated,
especially because it was the CAs primary basis for finding that Villarreal

had the intent to kill Lenny Villa, thereby making Villareal guilty of the
intentional felony of homicide. To repeat, according to Bienvenido
Marquezs testimony, as reproduced above, it was Dizon who uttered both
accusations against Villa and Marquez; Villareal had no participation
whatsoever in the specific threats referred to by the CA. It was Boyet
Dizon [who] stepped on [Marquezs] thigh; and who told witness
Marquez, [I]to, yung pamilya nito ay pinapatay yung kapatid ko. It was
also Dizon who jumped on Villas thighs while saying, [T]his guy, his father
stole the parking space of my father. With the testimony clarified, we find
that the CA had no basis for concluding the existence of intent to kill
based solely thereon.
As to the existence of animus interficendi on the part of Dizon, we refer to
the entire factual milieu and contextual premise of the incident to fully
appreciate and understand the testimony of witness Marquez. At the
outset, the neophytes were briefed that they would be subjected to
psychological pressure in order to scare them. They knew that they would
be mocked, ridiculed, and intimidated. They heard fraternity members
shout, Patay ka, Recinto, Yari ka, Recinto, Villa, akin ka, Asuncion, gulpi
ka, Putang ina mo, Asuncion, Putang ina nyo, patay kayo sa amin, or
some other words to that effect.[215] While beating the neophytes, Dizon
accused Marquez of the death of the formers purported NPA brother, and
then blamed Lenny Villas father for stealing the parking space of Dizons
father. According to the Solicitor General, these statements, including
those of the accused Dizon, were all part of the psychological initiation
employed by the Aquila Fraternity.[216]
Thus, to our understanding, accused Dizons way of inflicting
psychological pressure was through hurling make-believe accusations at
the initiates. He concocted the fictitious stories, so that he could justify
giving the neophytes harder blows, all in the context of fraternity initiation
and role playing. Even one of the neophytes admitted that the
accusations were untrue and made-up.
The infliction of psychological pressure is not unusual in the conduct of
hazing. In fact, during the Senate deliberations on the then proposed
Anti-Hazing Law, former Senator Lina spoke as follows:

So that if no direct physical harm is inflicted upon the neophyte or the

recruit but the recruit or neophyte is made to undergo certain
acts which I already described yesterday, like playing the Russian
roulette extensively to test the readiness and the willingness of the
neophyte or recruit to continue his desire to be a member of the
fraternity, sorority or similar organizationor playing and putting a
noose on the neck of the neophyte or recruit, making the recruit or
neophyte stand on the ledge of the fourth floor of the building facing
outside, asking him to jump outside after making him turn around several
times but the reality is that he will be made to jump towards the inside
portion of the building these are the mental or psychological tests that
are resorted to by these organizations, sororities or fraternities. The
doctors who appeared during the public hearing testified that such acts
can result in some mental aberration, that they can even lead to
psychosis, neurosis or insanity. This is what we want to prevent.
[217]
(Emphasis supplied)
Thus, without proof beyond reasonable doubt, Dizons behavior must not
be automatically viewed as evidence of a genuine, evil motivation to kill
Lenny Villa. Rather, it must be taken within the context of the fraternitys
psychological initiation. This Court points out that it was not even
established whether the fathers of Dizon and Villa really had any
familiarity with each other as would lend credence to the veracity of
Dizons threats. The testimony of Lennys co-neophyte, Marquez, only
confirmed this view. According to Marquez, he knew it was not true and
that [Dizon] was just making it up.[218] Even the trial court did not give
weight to the utterances of Dizon as constituting intent to kill: [T]he
cumulative acts of all the accused were not directed toward killing Villa,
but merely to inflict physical harm as part of the fraternity initiation rites x
x x.[219] The Solicitor General shares the same view.
Verily, we cannot sustain the CA in finding the accused Dizon guilty of
homicide under Article 249 of the Revised Penal Code on the basis of the
existence of intent to kill. Animus interficendi cannot and should not be
inferred unless there is proof beyond reasonable doubt of such intent.
[220]
Instead, we adopt and reinstate the finding of the trial court in
part, insofar as it ruled that none of the fraternity members had the
specific intent to kill Lenny Villa.[221]

Senator Lina. -- so as to capture the intent that we conveyed during the

period of interpellations on why we included the phrase or psychological
pain and suffering.

The existence of animus iniuriandi or malicious intent to injure not

proven beyond reasonable doubt

xxxxxxxxx

The Solicitor General argues, instead, that there was an intent to inflict
physical injuries on Lenny Villa. Echoing the Decision of the trial court,

the Solicitor General then posits that since all of the accused fraternity
members conspired to inflict physical injuries on Lenny Villa and death
ensued, all of them should be liable for the crime of homicide pursuant to
Article 4(1) of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles 262
to 266 of the Revised Penal Code,[222] the employment of physical injuries
must be coupled with dolus malus. As an act that is mala in se, the
existence of malicious intent is fundamental, since injury arises from the
mental state of the wrongdoer iniuria ex affectu facientis consistat. If
there is no criminal intent, the accused cannot be found guilty of an
intentional felony. Thus, in case of physical injuries under the Revised
Penal Code, there must be a specific animus iniuriandi or malicious
intention to do wrong against the physical integrity or well-being of a
person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus
iniuriandi, the overt act of inflicting physical injuries per se merely
satisfies the elements of freedom and intelligence in an intentional felony.
The commission of the act does not, in itself, make a man guilty unless
his intentions are.[223]
Thus, we have ruled in a number of instances [224] that the mere infliction
of physical injuries, absent malicious intent, does not make a person
automatically liable for an intentional felony. In Bagajo v. People,[225] the
accused teacher, using a bamboo stick, whipped one of her students
behind her legs and thighs as a form of discipline. The student suffered
lesions and bruises from the corporal punishment. In reversing the trial
courts finding of criminal liability for slight physical injuries, this Court
stated thus: Independently of any civil or administrative responsibility [w]e
are persuaded that she did not do what she had done with criminal intent
the means she actually used was moderate and that she was not
motivated by ill-will, hatred or any malevolent intent. Considering the
applicable laws, we then ruled that as a matter of law, petitioner did not
incur any criminal liability for her act of whipping her pupil. In People v.
Carmen,[226] the accused members of the religious group known as the
Missionaries of Our Lady of Fatima under the guise of a ritual or
treatment plunged the head of the victim into a barrel of water, banged
his head against a bench, pounded his chest with fists, and stabbed him
on the side with a kitchen knife, in order to cure him of nervous
breakdown by expelling through those means the bad spirits possessing
him. The collective acts of the group caused the death of the victim.
Since malicious intent was not proven, we reversed the trial courts finding
of liability for murder under Article 4 of the Revised Penal Code and

instead ruled that the accused should be held criminally liable for reckless
imprudence resulting in homicide under Article 365 thereof.
Indeed, the threshold question is whether the accuseds initial acts of
inflicting physical pain on the neophytes were attended by animus
iniuriandi amounting to a felonious act punishable under the Revised
Penal Code, thereby making it subject to Article 4(1) thereof. In People v.
Regato, we ruled that malicious intent must be judged by the action,
conduct, and external acts of the accused.[227] What persons do is the
best index of their intention. [228] We have also ruled that the method
employed, the kind of weapon used, and the parts of the body on which
the injury was inflicted may be determinative of the intent of the
perpetrator.[229] The Court shall thus examine the whole contextual
background surrounding the death of Lenny Villa.
Lenny died during Aquilas fraternity initiation rites. The night before the
commencement of the rites, they were briefed on what to expect. They
were told that there would be physical beatings, that the whole event
would last for three days, and that they could quit anytime. On their first
night, they were subjected to traditional initiation rites, including the
Indian Run, Bicol Express, Rounds, and the Auxies Privilege Round. The
beatings were predominantly directed at the neophytes arms and legs.
In the morning of their second day of initiation, they were made to present
comic plays and to play rough basketball. They were also required to
memorize and recite the Aquila Fraternitys principles. Late in the
afternoon, they were once again subjected to traditional initiation rituals.
When the rituals were officially reopened on the insistence of Dizon and
Villareal, the neophytes were subjected to another traditional ritual
paddling by the fraternity.
During the whole initiation rites, auxiliaries were assigned to the
neophytes. The auxiliaries protected the neophytes by functioning as
human barriers and shielding them from those who were designated to
inflict physical and psychological pain on the initiates. [230] It was their
regular duty to stop foul or excessive physical blows; to help the
neophytes to pump their legs in order that their blood would circulate; to
facilitate a rest interval after every physical activity or round; to serve food
and water; to tell jokes; to coach the initiates; and to give them whatever
they needed.
These rituals were performed with Lennys consent.[231] A few days before
the rites, he asked both his parents for permission to join the Aquila

Fraternity.[232] His father knew that Lenny would go through an initiation

process and would be gone for three days.[233] The CA found as follows:
It is worth pointing out that the neophytes willingly and voluntarily
consented to undergo physical initiation and hazing. As can be
gleaned from the narration of facts, they voluntarily agreed to join the
initiation rites to become members of the Aquila Legis Fraternity. Prior to
the initiation, they were given briefings on what to expect. It is of
common knowledge that before admission in a fraternity, the neophytes
will undergo a rite of passage. Thus, they were made aware that
traditional methods such as mocking, psychological tests and
physical punishment would take place. They knew that the initiation
would involve beatings and other forms of hazing. They were
also told of their right and opportunity to quit at any time they
wanted to. In fact, prosecution witness Navera testified that accused
Tecson told him that after a week, you can already play basketball.
Prosecution witness Marquez for his part, admitted that he knew that
the initiates would be hit in the arms and legs, that a wooden paddle
would be used to hit them and that he expected bruises on his arms
and legs. Indeed, there can be no fraternity initiation without
consenting neophytes.[234] (Emphasis supplied)
Even after going through Aquilas grueling traditional rituals during the first
day, Lenny continued his participation and finished the second day of
initiation.
Based on the foregoing contextual background, and absent further proof
showing clear malicious intent, we are constrained to rule that the
specific animus iniuriandi was not present in this case. Even if the
specific acts of punching, kicking, paddling, and other modes of inflicting
physical pain were done voluntarily, freely, and with intelligence, thereby
satisfying the elements of freedom and intelligence in the felony of
physical injuries, the fundamental ingredient of criminal intent was not
proven beyond reasonable doubt. On the contrary, all that was proven
was that the acts were done pursuant to tradition. Although the additional
rounds on the second night were held upon the insistence of Villareal and
Dizon, the initiations were officially reopened with the consent of the head
of the initiation rites; and the accused fraternity members still participated
in the rituals, including the paddling, which were performed pursuant to
tradition. Other than the paddle, no other weapon was used to inflict
injuries on Lenny. The targeted body parts were predominantly the legs
and the arms. The designation of roles, including the role of auxiliaries,
which were assigned for the specific purpose of lending assistance to and
taking care of the neophytes during the initiation rites, further belied the

presence of malicious intent. All those who wished to join the fraternity
went through the same process of traditional initiation; there is no proof
that Lenny Villa was specifically targeted or given a different treatment.
We stress that Congress itself recognized that hazing is uniquely different
from common crimes.[235] The totality of the circumstances must therefore
be taken into consideration.
The underlying context and motive in which the infliction of physical
injuries was rooted may also be determined by Lennys continued
participation in the initiation and consent to the method used even after
the first day. The following discussion of the framers of the 1995 AntiHazing Law is enlightening:
SENATOR GUINGONA. Most of these acts, if not all, are already
punished under the Revised Penal Code.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If hazing is done at present and it results in
death, the charge would be murder or homicide.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If it does not result in death, it may be frustrated
homicide or serious physical injuries.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. Or, if the person who commits sexual abuse
does so it can be penalized under rape or acts of lasciviousness.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. So, what is the rationale for making a new
offense under this definition of the crime of hazing?
SENATOR LINA. To discourage persons or group of persons either
composing a sorority, fraternity or any association from making this
requirement of initiation that has already resulted in these specific acts or
results, Mr. President.

That is the main rationale. We want to send a strong signal across the
land that no group or association can require the act of physical initiation
before a person can become a member without being held criminally
liable.

walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay

pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay
after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na:
Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung
mamatay diyan, mataas ang penalty sa inyo.

xxxxxxxxx
xxxxxxxxx
SENATOR GUINGONA. Yes, but what would be the rationale for that
imposition? Because the distinguished Sponsor has said that he is not
punishing a mere organization, he is not seeking the punishment of an
initiation into a club or organization, he is seeking the punishment of
certain acts that resulted in death, et cetera as a result of hazing which
are already covered crimes.
The penalty is increased in one, because we would like to discourage
hazing, abusive hazing, but it may be a legitimate defense for invoking
two or more charges or offenses, because these very same acts are
already punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
SENATOR LINA. x x x
Another point, Mr. President, is this, and this is a very telling
difference: When a person or group of persons resort to hazing as a
requirement for gaining entry into an organization, the intent to
commit a wrong is not visible or is not present, Mr. President.
Whereas, in these specific crimes, Mr. President, let us say there is death
or there is homicide, mutilation, if one files a case, then the intention to
commit a wrong has to be proven. But if the crime of hazing is the
basis, what is important is the result from the act of hazing.
To me, that is the basic difference and that is what will prevent or deter
the sororities or fraternities; that they should really shun this activity
called hazing. Because, initially, these fraternities or sororities do not
even consider having a neophyte killed or maimed or that acts of
lasciviousness are even committed initially, Mr. President.
So, what we want to discourage is the so-called initial innocent
act. That is why there is need to institute this kind of hazing. Ganiyan po
ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga
silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa
iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon,

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the

distinguished Sponsor. But I am again disturbed by his statement that
the prosecution does not have to prove the intent that resulted in the
death, that resulted in the serious physical injuries, that resulted in
the acts of lasciviousness or deranged mind. We do not have to prove
the willful intent of the accused in proving or establishing the crime of
hazing. This seems, to me, a novel situation where we create the
special crime without having to go into the intent, which is one of
the basic elements of any crime.
If there is no intent, there is no crime. If the intent were merely to
initiate, then there is no offense. And even the distinguished
Sponsor admits that the organization, the intent to initiate, the intent
to have a new society or a new club is, per se, not punishable at all.
What are punishable are the acts that lead to the result. But if these
results are not going to be proven by intent, but just because there
was hazing, I am afraid that it will disturb the basic concepts of the
Revised Penal Code, Mr. President.
SENATOR LINA. Mr. President, the act of hazing, precisely, is being
criminalized because in the context of what is happening in the
sororities and fraternities, when they conduct hazing, no one will
admit that their intention is to maim or to kill. So, we are already
criminalizing the fact of inflicting physical pain. Mr. President, it is a
criminal act and we want it stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the
masters intended to kill or the masters intended to maim. What is
important is the result of the act of hazing. Otherwise, the masters or
those who inflict the physical pain can easily escape responsibility
and say, We did not have the intention to kill. This is part of our
initiation rites. This is normal. We do not have any intention to kill or
maim.

This is the lusot, Mr. President. They might as well have been
charged therefore with the ordinary crime of homicide, mutilation, et
cetera, where the prosecution will have a difficulty proving the
elements if they are separate offenses.
xxxxxxxxx
SENATOR GUINGONA. Mr. President, assuming there was a group that
initiated and a person died. The charge is murder. My question is: Under
this bill if it becomes a law, would the prosecution have to prove
conspiracy or not anymore?
SENATOR LINA. Mr. President, if the person is present during hazing x x
x
SENATOR GUINGONA. The persons are present. First, would the
prosecution have to prove conspiracy? Second, would the prosecution
have to prove intent to kill or not?
SENATOR LINA. No more. As to the second question, Mr. President, if
that occurs, there is no need to prove intent to kill.
SENATOR GUINGONA. But the charge is murder.
SENATOR LINA. That is why I said that it should not be murder. It should
be hazing, Mr. President. [236] (Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on the
issue of whether to include sodomy as a punishable act under the AntiHazing Law, Senator Lina further clarified thus:
SENATOR BIAZON. Mr. President, this Representation has no objection
to the inclusion of sodomy as one of the conditions resulting from hazing
as necessary to be punished. However, the act of sodomy can be
committed by two persons with or without consent.
To make it clearer, what is being punished here is the commission of
sodomy forced into another individual by another individual. I move, Mr.
President, that sodomy be modified by the phrase without consent for
purposes of this section.

SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with

the concept that it is only going to aggravate the crime of hazing if it is
done without consent will change a lot of concepts here. Because the
results from hazing aggravate the offense with or without consent.
In fact, when a person joins a fraternity, sorority, or any association
for that matter, it can be with or without the consent of the intended
victim. The fact that a person joins a sorority or fraternity with his
consent does not negate the crime of hazing.
This is a proposed law intended to protect the citizens from the
malpractices that attend initiation which may have been announced with
or without physical infliction of pain or injury, Mr. President. Regardless
of whether there is announcement that there will be physical hazing
or whether there is none, and therefore, the neophyte is duped into
joining a fraternity is of no moment. What is important is that there
is an infliction of physical pain.
The bottom line of this law is that a citizen even has to be protected
from himself if he joins a fraternity, so that at a certain point in time, the
State, the individual, or the parents of the victim can run after the
perpetrators of the crime, regardless of whether or not there was
consent on the part of the victim.
xxxxxxxxx
SENATOR LINA. Mr. President, I understand the position taken by the
distinguished Gentleman from Cavite and Metro Manila. It is correct that
society sometimes adopts new mores, traditions, and practices.
In this bill, we are not going to encroach into the private proclivities of
some individuals when they do their acts in private as we do not take a
peek into the private rooms of couples. They can do their thing if they
want to make love in ways that are not considered acceptable by the
mainstream of society. That is not something that the State should
prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such
that the act may even be entered into with consent. It is not only
sodomy. The infliction of pain may be done with the consent of the
neophyte. If the law is passed, that does not make the act of hazing
not punishable because the neophyte accepted the infliction of pain
upon himself.

If the victim suffers from serious physical injuries, but the initiator
said, Well, he allowed it upon himself. He consented to it. So, if we
allow that reasoning that sodomy was done with the consent of the
victim, then we would not have passed any law at all. There will be
no significance if we pass this bill, because it will always be a
defense that the victim allowed the infliction of pain or suffering. He
accepted it as part of the initiation rites.
But precisely, Mr. President that is one thing that we would want to
prohibit. That the defense of consent will not apply because the
very act of inflicting physical pain or psychological suffering is, by
itself, a punishable act. The result of the act of hazing, like death or
physical injuries merely aggravates the act with higher penalties. But the
defense of consent is not going to nullify the criminal nature of the
act.
So, if we accept the amendment that sodomy can only aggravate the
offense if it is committed without consent of the victim, then the
whole foundation of this proposed law will collapse.
SENATOR BIAZON. Thank you, Mr. President.

Code, Congress did not simply enact an amendment thereto. Instead, it

created a special law on hazing, founded upon the principle of mala
prohibita. This dilemma faced by Congress is further proof of how the
nature of hazing unique as against typical crimes cast a cloud of doubt on
whether society considered the act as an inherently wrong conduct
or mala in se at the time. It is safe to presume that Lennys parents would
not have consented[239] to his participation in Aquila Fraternitys initiation
rites if the practice of hazing were considered by them as mala in se.
Furthermore, in Vedaa v. Valencia (1998), we noted through Associate
Justice (now retired Chief Justice) Hilario Davide that in our nations very
recent history, the people have spoken, through Congress, to
deem conduct constitutive of hazing, [an] act[] previously
considered harmless by custom, as criminal.[240] Although it may be
regarded as a simple obiter dictum, the statement nonetheless shows
recognition that hazing or the conduct of initiation rites through physical
and/or psychological suffering has not been traditionally criminalized.
Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in
the law; hazing was not clearly considered an intentional felony. And
when there is doubt on the interpretation of criminal laws, all must be
resolved in favor of the accused. In dubio pro reo.

(Emphasis supplied)

For the foregoing reasons, and as a matter of law, the Court is

constrained to rule against the trial courts finding of malicious intent to
inflict physical injuries on Lenny Villa, there being no proof beyond
reasonable doubt of the existence of malicious intent to inflict physical
injuries or animus iniuriandi as required in mala in se cases, considering
the contextual background of his death, the unique nature of hazing, and
absent a law prohibiting hazing.

Realizing the implication of removing the states burden to prove intent,

Senator Lina, the principal author of the Senate Bill, said:

The accused fraternity members guilty of reckless imprudence

resulting in homicide

I am very happy that the distinguished Minority Leader brought out the
idea of intent or whether there it is mala in se or mala prohibita. There
can be a radical amendment if that is the point that he wants to go to.

The absence of malicious intent does not automatically mean, however,

that the accused fraternity members are ultimately devoid of criminal
liability. The Revised Penal Code also punishes felonies that are
committed by means of fault (culpa). According to Article 3 thereof, there
is fault when the wrongful act results from imprudence, negligence, lack
of foresight, or lack of skill.

SENATOR LINA. Thank you very much.

THE PRESIDENT. Is there any objection to the committee amendment?
(Silence.) The Chair hears none; the same is approved. [237]

If we agree on the concept, then, maybe, we can just make this a

special law on hazing. We will not include this anymore under the
Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President.[238](Emphasis supplied)
Thus, having in mind the potential conflict between the proposed law and
the core principle of mala in se adhered to under the Revised Penal

Reckless imprudence or negligence consists of a voluntary act done

without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of precaution

or advertence on the part of the person committing it. [241] In this case, the
danger is visible and consciously appreciated by the actor.[242] In
contrast, simple imprudence or negligence comprises an act done without
grave fault, from which an injury or material damage ensues by reason of
a mere lack of foresight or skill.[243] Here, the threatened harm is not
immediate, and the danger is not openly visible. [244]

death. [258] The officer also found that the brain, liver, kidney, pancreas,
intestines, and all other organs seen in the abdominals, as well as the
thoracic organ in the lungs, were pale due to the lack of blood, which was
redirected to the thighs and forearms.[259] It was concluded that there was
nothing in the heart that would indicate that the victim suffered from a
previous cardiac arrest or disease.[260]

The test[245] for determining whether or not a person is negligent in doing

an act is as follows: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the
law imposes on the doer the duty to take precaution against the
mischievous results of the act. Failure to do so constitutes negligence. [246]

The multiple hematomas or bruises found in Lenny Villas arms and

thighs, resulting from repeated blows to those areas, caused the loss of
blood from his vital organs and led to his eventual death. These
hematomas must be taken in the light of the hazing activities performed
on him by the Aquila Fraternity. According to the testimonies of the coneophytes of Lenny, they were punched, kicked, elbowed, kneed,
stamped on; and hit with different objects on their arms, legs, and thighs.
[261]
They were also paddled at the back of their thighs or legs; [262] and
slapped on their faces.[263] They were made to play rough basketball.
[264]
Witness Marquez testified on Lenny, saying: [T]inamaan daw sya
sa spine.[265] The NBI medico-legal officer explained that the death of the
victim was the cumulative effect of the multiple injuries suffered by the
latter.[266] The relevant portion of the testimony is as follows:

As we held in Gaid v. People, for a person to avoid being charged with

recklessness, the degree of precaution and diligence required varies with
the degree of the danger involved. [247] If, on account of a certain line of
conduct, the danger of causing harm to another person is great, the
individual who chooses to follow that particular course of conduct is
bound to be very careful, in order to prevent or avoid damage or injury.
[248]
In contrast, if the danger is minor, not much care is required. [249] It is
thus possible that there are countless degrees of precaution or diligence
that may be required of an individual, from a transitory glance of care to
the most vigilant effort.[250] The duty of the person to employ more or less
degree of care will depend upon the circumstances of each particular
case.[251]
There was patent recklessness in the hazing of Lenny Villa.
According to the NBI medico-legal officer, Lenny died of cardiac failure
secondary to multiple traumatic injuries.[252] The officer explained that
cardiac failure refers to the failure of the heart to work as a pump and as
part of the circulatory system due to the lack of blood. [253] In the present
case, the victims heart could no longer work as a pumping organ,
because it was deprived of its requisite blood and oxygen. [254] The
deprivation was due to the channeling of the blood supply from the entire
circulatory system including the heart, arteries, veins, venules, and
capillaries to the thigh, leg, and arm areas of Lenny, thus causing the
formation of multiple hematomas or blood clots.[255] The multiple
hematomas were wide, thick, and deep,[256] indicating that these could
have resulted mainly from injuries sustained by the victim from fist blows,
knee blows, paddles, or the like.[257] Repeated blows to those areas
caused the blood to gradually ooze out of the capillaries until the
circulating blood became so markedly diminished as to produce

Atty. Tadiar Doctor, there was, rather, it was your testimony on various
cross examinations of defense counsels that the injuries that you have
enumerated on the body of the deceased Lenny Villa previously marked
as Exhibit G-1 to G-14 individually by themselves would not cause the
death of the victim. The question I am going to propound to you is what is
the cumulative effect of all of these injuries marked from Exhibit G-1 to G14?
Witness All together nothing in concert to cause to the demise of the
victim. So, it is not fair for us to isolate such injuries here because we are
talking of the whole body. At the same manner that as a car would not run
minus one (1) wheel. No, the more humane in human approach is to
interpret all those injuries in whole and not in part. [267]
There is also evidence to show that some of the accused fraternity
members were drinking during the initiation rites.[268]
Consequently, the collective acts of the fraternity members were
tantamount to recklessness, which made the resulting death of Lenny a
culpable felony. It must be remembered that organizations owe to their
initiates a duty of care not to cause them injury in the process.[269] With
the foregoing facts, we rule that the accused are guilty of reckless

imprudence resulting in homicide. Since the NBI medico-legal officer

found that the victims death was the cumulative effect of the injuries
suffered, criminal responsibility redounds to all those who directly
participated in and contributed to the infliction of physical injuries.
It appears from the aforementioned facts that the incident may have been
prevented, or at least mitigated, had the alumni of Aquila Fraternity
accused Dizon and Villareal restrained themselves from insisting on
reopening the initiation rites. Although this point did not matter in the end,
as records would show that the other fraternity members participated in
the reopened initiation rites having in mind the concept of seniority in
fraternities the implication of the presence of alumni should be seen as a
point of review in future legislation. We further note that some of the
fraternity members were intoxicated during Lennys initiation rites. In this
light, the Court submits to Congress, for legislative consideration, the
amendment of the Anti-Hazing Law to include the fact of intoxication and
the presence of non-resident or alumni fraternity members during hazing
as aggravating circumstances that would increase the applicable
penalties.
It is truly astonishing how men would wittingly or unwittingly impose the
misery of hazing and employ appalling rituals in the name of brotherhood.
There must be a better way to establish kinship. A neophyte admitted that
he joined the fraternity to have more friends and to avail himself of the
benefits it offered, such as tips during bar examinations. [270] Another
initiate did not give up, because he feared being looked down upon as a
quitter, and because he felt he did not have a choice.[271] Thus, for Lenny
Villa and the other neophytes, joining the Aquila Fraternity entailed a leap
in the dark. By giving consent under the circumstances, they left their
fates in the hands of the fraternity members. Unfortunately, the hands to
which lives were entrusted were barbaric as they were reckless.
Our finding of criminal liability for the felony of reckless imprudence
resulting in homicide shall cover only accused Tecson, Ama, Almeda,
Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these
five accused fraternity members would have all been convicted of the
crime of hazing punishable by reclusion perpetua (life imprisonment).
[272]
Since there was no law prohibiting the act of hazing when Lenny died,
we are constrained to rule according to existing laws at the time of his
death. The CA found that the prosecution failed to prove, beyond
reasonable doubt,
Victorino et al.s individual participation in the infliction of physical injuries
upon Lenny Villa.[273] As to accused Villareal, his criminal liability was

totally extinguished by the fact of his death, pursuant to Article 89 of the

Revised Penal Code.
Furthermore, our ruling herein shall be interpreted without prejudice to
the applicability of the Anti-Hazing Law to subsequent cases.
Furthermore, the modification of criminal liability from slight physical
injuries to reckless imprudence resulting in homicide shall apply only
with respect to accused Almeda, Ama, Bantug, and Tecson.
The accused liable to pay damages
The CA awarded damages in favor of the heirs of Lenny Villa in the
amounts of 50,000 as civil indemnity ex delicto and 1,000,000 as
moral damages, to be jointly and severally paid by accused Dizon and
Villareal. It also awarded the amount of 30,000 as indemnity to be jointly
and severally paid by accused Almeda, Ama, Bantug, and Tecson.
Civil indemnity ex delicto is automatically awarded for the sole fact of
death of the victim.[274] In accordance with prevailing jurisprudence, [275] we
sustain the CAs award of indemnity in the amount of 50,000.
The heirs of the victim are entitled to actual or compensatory damages,
including expenses incurred in connection with the death of the victim, so
long as the claim is supported by tangible documents. [276] Though we are
prepared to award actual damages, the Court is prevented from granting
them, since the records are bereft of any evidence to show that actual
expenses were incurred or proven during trial. Furthermore, in the
appeal, the Solicitor General does not interpose any claim for actual
damages.[277]
The heirs of the deceased may recover moral damages for the grief
suffered on account of the victims death.[278] This penalty is pursuant to
Article 2206(3) of the Civil Code, which provides that the spouse,
legitimate and illegitimate descendants and the ascendants of the
deceased may demand moral damages for mental anguish by reason of
the death of the deceased.[279] Thus, we hereby we affirm the CAs award
of moral damages in the amount of 1,000,000.
WHEREFORE, the appealed Judgment in G.R. No. 155101 finding
petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and SET
ASIDE IN PART. The appealed Judgment in G.R. No. 154954 finding
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson guilty of the crime of slight physical injuries is

also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon,

Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson are found GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide defined and penalized under Article 365
in relation to Article 249 of the Revised Penal Code. They are hereby
sentenced to suffer an indeterminate prison term of four (4) months and
one (1) day of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition, accused are
ORDERED jointly and severally to pay the heirs of Lenny Villa civil
indemnity ex delicto in the amount of 50,000, and moral damages in the
amount of 1,000,000, plus legal interest on all damages awarded at the
rate of 12% from the date of the finality of this Decision until satisfaction.
[280]
Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is
hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 &
178080, dismissing the criminal case filed against Escalona, Ramos,
Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article
89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is
hereby dismissed, and the criminal case against Artemio Villareal
deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and the
Speaker of the House of Representatives for possible consideration of
the amendment of the Anti-Hazing Law to include the fact of intoxication
and the presence of non-resident or alumni fraternity members during
hazing as aggravating circumstances that would increase the applicable
penalties.
SO ORDERED.

FIRST DIVISION
[G.R. No. 134732. May 29, 2002]
PEOPLE OF THE PHILIPPINES, petitioner, vs. ACELO
VERRA, respondent.

DECISION
PUNO, J.:
A day in court is the touchstone of the right to due process in criminal
justice. It is an aspect of the duty of the government to follow a fair
process of decision-making when it acts to deprive a person of his liberty.
[1]
But just as an accused is accorded this constitutional protection, so is
the State entitled to due process in criminal prosecutions. [2] It must
similarly be given the chance to present its evidence in support of a
charge.
In the case at bar, petitioner, People of the Philippines, claims that it was
denied its day in court and its due process right was breached. Filing this
Petition under Rule 45, it seeks to set aside, on pure questions of law, the
April 6, 1998 Decision of the Court of Appeals.
On November 14, 1988, respondent Acelo Verra was charged with the
crime of murder for killing a certain Elias Cortezo. A warrant of arrest was
issued by the Regional Trial Court against him on November 21, 1988.
He remained at-large until May 24, 1996 when he voluntarily submitted
himself to the jurisdiction of the court accompanied by his counsel.
Immediately, arraignment proceeded during which he entered a plea of
Not Guilty.
On the same day, the prosecution called to the witness stand the wife of
the victim, private complainant Damiana Cortezo. She testified that: (1)
she has executed an affidavit of desistance; [3] (2) she is no longer
interested in prosecuting the case; and (3) other witnesses of the
shooting incident have turned hostile and have similarly lost concern in
pursuing the same. Thereafter, the prosecution, joined by the counsel for
the accused, moved for the dismissal of the case. In light of these
developments, the trial judge issued an Order dated May 24, 1996
granting the motion, thus.:
WHEREFORE, after considering the testimony of the private complainant
and the motion of the prosecution joined by counsel for the accused, this
Court is hopeless (sic) in proceeding with this case. Therefore let this
case be considered DISMISSED and the Warrant of Arrest for the
accused is hereby cancelled.
SO ORDERED.[4]

Subsequently, two other witnesses of the shooting incident appeared

after learning of the dismissal of the case and manifested their
willingness to testify. Further, two sisters of the victim assailed the
allegation of lack of interest. Consequently, the prosecution filed a Motion
to Set Aside the Order of Dismissal on July 22, 1996 asserting that
Damiana and the accused misled the trial court and deprived the plaintiff,
People of the Philippines, its day in court. For which reason, it argued,
the Order dismissing the case should be voided.
On August 21, 1996, the trial court set aside the Order of Dismissal dated
May 24, 1996. Respondent moved for its reconsideration but his motion
was denied on September 26, 1996. He then instituted before the Court
of Appeals a Petition for Certiorari challenging the August 21 Order. The
appellate court rendered a Decision on April 6, 1998 granting the petition.
It ruled that the dismissal of the case against petitioner has attained
finality, and that its revival requires the filing of a new case or
information, viz:
Thus in the case at bar, when the trial court issued its order of dismissal,
as far as the court is concerned, the case was ended. To revive the case
against the same accused or to prosecute him anew for the same act
imputed to him, the government has to file a new case or information for
the reason that the dismissed case had already been terminated,
definitely and finally.
WHEREFORE, the petition is hereby granted and the orders dated
August 21, 1996 and September 26, 1996 are hereby SET ASIDE, and
the Order dated May 24, 1996 reinstated.[5]
Hence, the present course of action. In this Petition for Review, petitioner
impugns the Decision of the appellate court in that:
The Court of Appeals decided a question of substance in a way that is not
in accord with law and jurisprudence when it ruled that: (i) the state was
not denied its day in court and was not misled by private complainant in
the dismissal of the case; and (ii) the order of the trial court dismissing
the case has attained finality.[6]
The petition is devoid of merit.
I
Petitioner cannot complain that it was denied its day in court. It was, in
the first place, represented by a public prosecutor who was personally

present in every stage of the proceeding -- from the arraignment to the

promulgation of the dismissal order -- to protect its interests. It was given
the chance to submit its evidence as it in fact called to the stand its own
witness, Damiana (who incidentally was the only witness presented
here), during the day of the hearing. Then, the prosecutor was able to
conduct her direct examination. More importantly, petitioner was the one
who jointly moved with accuseds counsel for the dismissal of this case
due to lack of evidence. The Order of Dismissal was given in open court
by the presiding judge without any remonstrance from the prosecution.
II
We are similarly not persuaded by petitioners contention that by reason
of the deceit employed by Damiana, the prosecution and the trial court
were misled.
Well settled is the rule that for fraud to cause the annulment of a
judgment, it must be established by clear and convincing evidence. The
petitioner must sufficiently prove the specific acts constituting the deceit
on the part of Damiana. It must demonstrate that (1) her statements are
untrue, made with knowledge of their falsity or with reckless and
conscious ignorance thereof, especially if parties are not on equal terms,
made with intent that petitioner act thereon or in a manner apparently
fitted to induce it to act thereon, and (2) petitioner must act in reliance on
the statements in the manner contemplated, or manifestly probable to its
injury.[7]
Damianas declarations on the witness stand regarding the hostility of the
other witnesses and lack of interest in prosecuting the case may be false,
but there is no proof that they were made with knowledge of its falsity or
with reckless and conscious ignorance thereof. It is one thing to allege
deceit and fraud but another to prove by evidence the specific acts
constituting the same.
To be sure, fraud as a ground for nullity of a judgment must be extrinsic to
the litigation. Were this not the rule, there would be no end to the
litigation, perjury being of such common occurrence in trials. [8] Fraud is
extrinsic or collateral where it prevents a party from having a trial, or real
contest, or from presenting all of his case to the court, or where it
operates upon matters pertaining, not to the judgment itself, but to the
manner in which it was procured so that there is never a fair submission
of the controversy. In other words, extrinsic fraud refers to any fraudulent
act of the prevailing party in the litigation which is committed outside of
trial of the case, whereby the defeated party has been prevented from

exhibiting fully his side of the case, by fraud or deception practiced on

him by his opponent.[9]
Enlightening are the following examples given by Justice Miller, viz:
x x x. Where the unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by his opponent, as
by keeping him away from court, a false promise of a compromise; or
where the defendant never had knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an attorney fraudulently or
without authority assumes to represent a party and connives at his
defeat; or where the attorney regularly employed corruptly sells out his
clients interest to the other side -- these, and similar cases which show
that there has never been a real contest in the trial or hearing of the case,
are reasons for which a new suit may be sustained to set aside and annul
a former judgment or decree, or open the case for a new and fair hearing.
See, Wells, Res Judicata, sec 499; Pearce v. Olney, 20 Conn., 544;
Wierich v. De Zoya, 7 Ill., (2 Gilm.) 385; Kent v. Richards, 3 Md. Ch., 396;
Smith v. Lowry, 1 Johns. Ch., 320; De Louis v. Meek, 2 Green (Iowa), 55.
In all these cases and many others which have been examined, relief has
been granted on the ground that, by some fraud practiced directly
upon the party seeking relief against the judgment or decree, that party
has been prevented from presenting all of his case to the court. [10]
Further, it must be emphasized that the fraud or deceit cannot be of the
losing partys own doing, nor must it contribute to it. The extrinsic fraud
must be employed against it by the adverse party, who because of
some trick, artifice, or device naturally prevails in the suit. The end result
not only defeats legitimate rights of the losing party in the lawsuit. On a
larger scale, it circumvents the adversarial system of our litigation
process and makes a mockery of our judicial contests. That instead of
having two antagonists who genuinely compete to fully ventilate their
cause and demolish that of his opponents, what transpires is a scripted
theatrical drama played before the august hall of an officer of the court.
Examining the facts of the case at bar, we find that no fraud or deceit was
properly proved against the respondent. Indeed, petitioner admits that if
there was fraud or deceit here, it was practiced by its own witness,
Damiana, in making her false testimony. As such, it has no reason to
protest. Even assuming, arguendo, that she misled the petitioner and the
court, her action should not be taken against the accused. Petitioner has
not proffered any proof that Damiana and the respondent were in

collusion. Allegation of collusion must be established by competent and

credible proof.
To be sure, petitioner has only itself to blame for jointly moving for the
dismissal of this case too soon, without first verifying the truth of
Damianas statement. It could have easily confirmed whether indeed the
other witnesses to the shooting incident have turned hostile by contacting
them. It cannot put forth the excuse that it did not know their whereabouts
or could not get in touch with them, since their addresses were indicated
on the Sworn Statements they executed in connection with the killing on
September 1, 1987 during the period of police investigation. The Sworn
Statements actually formed part of the basis for the filing of the
Information against the respondent. Contacts could have similarly been
established with the victims relatives.
III
As there is no vice which taints the Order of Dismissal of the trial court
issued in open court on May 24, 1996, subsequently reduced to writing
and entered in the Book of Judgment on May 30, 1996, we hold that it
has now attained finality. Petitioners reliance on the cases of Villa v.
Lazaro[11] and Paulin v. Gimenez[12] is misplaced. We held in Villa that a
judgment rendered without due process is null and void, could never
become final, and could be attacked in any appropriate proceeding. We
ruled in Paulin, on the other hand, that a violation of the states right to
due process ousts courts of their jurisdiction and warrants a remand of
the case to the trial court for further proceeding and reception of
evidence. In those two cases, however, it is clear that the aggrieved
parties were denied their day in court. In Villa, petitioner was not
informed of the complaint against her; the administrative inquiry involving
her was conducted in the most informal manner by means only of
communication requiring submission of certain documents; and the
documents she submitted were never given consideration on the
pretense of lack of compliance. Similarly, in Paulin, the prosecution was
stripped of its right to complete the presentation of its evidence when the
case therein was prematurely terminated and dismissed. Obviously, the
facts in Villa and Paulin are different. That petitioner, to reiterate, was
never denied its day in court nor was it deceived by its own witness is a
point already well-belabored.
IV
Finally, we agree with the respondent's claim that to revive the case
against him would be violative of his constitutional right against double
jeopardy.

Under Article III, Section 21 of the Constitution, "No person shall be twice
put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."[13] In a long line
of decisions, we have enumerated the following requisites for double
jeopardy to attach: (1) upon a valid indictment; (2) before a competent
court; (3) after arraignment; (4) when a valid plea has been entered; and
(5) when the defendant was acquitted or convicted or the case was
dismissed or otherwise terminated without the express consent of the
accused.[14] There are however two occasions when double jeopardy will
attach even if the motion to dismiss the case is made by the accused
himself. The first is when the ground is insufficiency of evidence of the
prosecution, and the second is when the proceedings have been
unreasonably prolonged in violation of the right to a speedy trial. [15]
In the case at bar, we find all the above-cited requisites present. First,
there was a valid information, sufficient in form and substance to sustain
a conviction, filed on November 14, 1988 duly signed by 4thAssistant
Provincial Fiscal Cesar M. Merin.[16] Second, the Regional Trial Court,
Branch 10 of Tacloban City clearly had jurisdiction to hear and try the
murder charge against the respondent. Third, he was arraigned in open
court on May 24, 1996 with the assistance of a counsel de officio.
[17]
Fourth, during the arraignment, he entered a plea of not guilty.
[18]
Finally, there was a valid termination of this case on the basis of the
trial judge's Order to Dismiss the case. While it is true that the respondent
joined the prosecution in praying for its dismissal, double jeopardy will still
attach since the basis for the ruling was the insufficiency of evidence of
the prosecution. In view of private complainant's desistance and her
testimony that other witnesses have turned hostile and are also no longer
interested in prosecuting this case, petitioner clearly lacks the evidence to
support the charge.
IN VIEW WHEREOF, there being no showing that the Court of Appeals
committed any reversible error, the instant petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 176389

January 18, 2011

ANTONIO LEJANO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176864
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A.
GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ,
PETER ESTRADA and GERARDO BIONG, Appellants.
RESOLUTION
ABAD, J.:
On December 14, 2010 the Court reversed the judgment of the Court of
Appeals (CA) and acquitted the accused in this case, Hubert Jeffrey P.
Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez,
Miguel Rodriguez, Peter Estrada, and Gerardo Biong of the charges
against them on the ground of lack of proof of their guilt beyond
reasonable doubt.
On December 28, 2010 complainant Lauro G. Vizconde, an immediate
relative of the victims, asked the Court to reconsider its decision, claiming
that it "denied the prosecution due process of law; seriously
misappreciated the facts; unreasonably regarded Alfaro as lacking
credibility; issued a tainted and erroneous decision; decided the case in a
manner that resulted in the miscarriage of justice; or committed grave
abuse in its treatment of the evidence and prosecution witnesses." 1
But, as a rule, a judgment of acquittal cannot be reconsidered because it
places the accused under double jeopardy. The Constitution provides in
Section 21, Article III, that:
Section 21. No person shall be twice put in jeopardy of punishment for
the same offense. x x x

To reconsider a judgment of acquittal places the accused twice in

jeopardy of being punished for the crime of which he has already been
absolved. There is reason for this provision of the Constitution. In criminal
cases, the full power of the State is ranged against the accused. If there
is no limit to attempts to prosecute the accused for the same offense after
he has been acquitted, the infinite power and capacity of the State for a
sustained and repeated litigation would eventually overwhelm the
accused in terms of resources, stamina, and the will to fight.
As the Court said in People of the Philippines v. Sandiganbayan: 2
[A]t the heart of this policy is the concern that permitting the sovereign
freely to subject the citizen to a second judgment for the same offense
would arm the government with a potent instrument of oppression. The
provision therefore guarantees that the State shall not be permitted to
make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense, and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may be
found guilty. Societys awareness of the heavy personal strain which a
criminal trial represents for the individual defendant is manifested in the
willingness to limit the government to a single criminal proceeding to
vindicate its very vital interest in the enforcement of criminal laws. 3
Of course, on occasions, a motion for reconsideration after an acquittal is
possible. But the grounds are exceptional and narrow as when the court
that absolved the accused gravely abused its discretion, resulting in loss
of jurisdiction, or when a mistrial has occurred. In any of such cases, the
State may assail the decision by special civil action of certiorari under
Rule 65.4
Here, although complainant Vizconde invoked the exceptions, he has
been unable to bring his pleas for reconsideration under such exceptions.
For instance, he avers that the Court "must ensure that due process is
afforded to all parties and there is no grave abuse of discretion in the
treatment of witnesses and the evidence." 5But he has not specified the
violations of due process or acts constituting grave abuse of discretion
that the Court supposedly committed. His claim that "the highly
questionable and suspicious evidence for the defense taints with serious
doubts the validity of the decision" 6 is, without more, a mere conclusion
drawn from personal perception.

Complainant Vizconde cites the decision in Galman v.

Sandiganbayan7 as authority that the Court can set aside the acquittal of
the accused in the present case. But the government proved in Galman
that the prosecution was deprived of due process since the judgment of
acquittal in that case was "dictated, coerced and scripted." 8 It was a sham
trial. Here, however, Vizconde does not allege that the Court held a sham
review of the decision of the CA. He has made out no case that the Court
held a phony deliberation in this case such that the seven Justices who
voted to acquit the accused, the four who dissented, and the four who
inhibited themselves did not really go through the process.
Ultimately, what the complainant actually questions is the Courts
appreciation of the evidence and assessment of the prosecution
witnesses credibility. He ascribes grave error on the Courts finding that
Alfaro was not a credible witness and assails the value assigned by the
Court to the evidence of the defense. In other words, private complainant
wants the Court to review the evidence anew and render another
judgment based on such a re-evaluation. This is not constitutionally
allowed as it is merely a repeated attempt to secure Webb, et als
conviction. The judgment acquitting Webb, et al is final and can no longer
be disturbed.
WHEREFORE, the Court DENIES for lack of merit complainant Lauro G.
Vizcondes motion for reconsideration dated December 28, 2010.
For essentially the same reason, the Court DENIES the motions for leave
to intervene of Fr. Robert P. Reyes, Sister Mary John R. Mananzan,
Bishop Evangelio L. Mercado, and Dante L.A. Jimenez, representing the
Volunteers Against Crime and Corruption and of former Vice President
Teofisto Guingona, Jr.
No further pleadings shall be entertained in this case.
SO ORDERED.

CONCURRING OPINION
SERENO, J.:
The Motion for Reconsideration assails the majority for failing to uphold
the trial courts conclusions. The simple fact is that the evidence tends to

demonstrate that Hubert Webb is innocent. The simple fact also is that
the evidence demonstrates that not only had Jessica Alfaro failed to
substantiate her testimony, she had contradicted herself and had been
contradicted by other more believable evidence. The other main
prosecution witnesses fare no better. This is the gist of the Decision
sought to be reconsidered. While this Court does not make a dispositive
ruling other than a pronouncement of "guilt" or "non-guilt" on the part of
the accused, the legal presumption of innocence must be applied in
operative fact. It is unfortunate that statements were made that sought to
dilute the legal import of the majority Decision. A pronouncement of this
Court that the accused has not been proven to be guilty beyond
reasonable doubt cannot be twisted to mean that this Court does not
believe in the innocence of the accused when the reasoning of the Court
demonstrates such belief. A careful reading of the majority Decision, as
well as the concurring opinions, is required to determine whether the
accused were acquitted solely because there was lingering doubt as to
their guilt of the crime charged or whether the accused were acquitted not
only because of doubt as to their guilt but also because the evidence
tends to establish their innocence. In the case of Hubert Webb, the
evidence tends to establish his innocence. On the other hand, the
testimony of Jessica Alfaro was wholly rejected by the majority as not
believable.
In his Motion for Reconsideration, private complainant asserts that this
Court should have respected the trial courts resolve to give full credence
to the testimony of Jessica Alfaro. While as a general rule, a trial judges
findings as to the credibility of a witness are entitled to utmost respect as
he has had the opportunity to observe their demeanor on the witness
stand, this holds true only in the absence of bias, partiality, and grave
abuse of discretion on the part of the judge.1 The succeeding discussion
demonstrates why this Court has no choice but to reject the trial courts
findings.
The mistaken impression that Alfaro was a credible witness was, in
significant measure, perpetrated by the trial courts inappropriate and
mismatched attribution of rights to and duties of the accused vis-a-vis the
principal witness in a criminal proceeding. As discussed in the
promulgated Decision of the Court in this case, the trial court failed to
recognize the accuseds right to be presumed innocent. Instead, the trial
courts Decision indicated a preconceived belief in the accuseds guilt,
and as a corollary, that witness Alfaro was telling the truth when she
testified to the accuseds guilt. In excessively protecting Alfaro, the trial

court improperly ascribed to her the right reserved for an accused. It also
unreasonably imposed severe limitations on the extent of the right of the
defense to cross-examine her.

be tested on cross-examination for honesty by contradictory evidence

of a reputation for dishonesty, for inconsistency, or for possible bias or
improper motive.

During Alfaros cross examination, the defense counsel tried to impeach

her credibility by asking her about her 28 April 1995 Affidavit, which
markedly differs from her 22 May 1995 Affidavit. The prosecution
objected and moved that the questions be expunged from the records on
the basis of the inadmissibility of the evidence obtained allegedly without
the assistance of counsel, pursuant to Article III Section 12(1) and (3) of
the 1987 Constitution.2This constitutional right, however, is a right
reserved solely for the accused or a "person under investigation for the
commission of an offense." The prosecutions objection had no legal
basis because Alfaro was clearly not the accused in the case. Alfaro was
a witness who had a legal duty to "answer questions, although his (her)
answer may tend to establish a claim against him (her)." 3 Notwithstanding
this, the lower court sustained the prosecutions objection.

To establish Alfaros bias and motive for testifying in the case, the
defense counsel sought to ask Alfaro about her brother, Patrick. Alfaro
admitted that Patrick was a drug addict and had been arrested once by
the NBI for illegal possession of drugs, but that he was presently in the
United States. The theory of the defense was that Patricks liberty was
part of a deal that Alfaro had struck with the NBI in exchange for her
services. When defense counsel inquired about the circumstances of
Patricks departure for the United States, the prosecution objected to the
questions on the ground of irrelevance. Respondent judge sustained the
objection, thus foreclosing a significant avenue for testing Alfaros
"freedom from interest or bias."

The law does not confer any favorable presumption on behalf of a

witness. It is precisely due to the absence of any legal presumption that
the witness is telling the truth that he/she is subjected to crossexamination to "test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all important facts bearing
upon the issue."4 The Rules provide that "the witness may be crossexamined by the adverse party as to any matters stated in the direct
examination, or connected therewith, with sufficient fullness and
freedom."5] A witness may be impeached "by contradictory evidence, by
evidence that his general reputation for truth, honesty, or integrity is bad,
or by evidence that he has made at other times statements inconsistent
with his present testimony."6
The right to cross-examine a witness is a matter of procedural due
process such that the testimony or deposition of a witness given in a
former case "involving the same parties and subject matter, may be given
in evidence against the adverse party" provided the adverse party "had
the opportunity to cross-examine him." 7
Notwithstanding the right of the accused to fully and freely conduct a
thorough cross examination, the trial court set undue restrictions on the
defense counsels cross examination of Alfaro, effectively denying the
accused such right. The length of the cross-examination is not as
material in the determination of the credibility of the witness as much as
whether such witness was fully tested by the defense when demanded to

The defense counsel tried to cross-examine Alfaro regarding her

educational attainment as stated in her sworn statements. The defense
presented her college transcript of records to prove that she only enrolled
for a year and earned nine (9) academic units, contrary to her claim that
she finished second year college. Notably, Alfaro misrepresented her
educational attainment in both of her affidavits her 28 April 1995
Affidavit which she claimed was executed without assistance of counsel,
and her subsequent 22 May 1995 Affidavit which was admittedly
executed with the assistance of counsel. Apparently, Alfaros lie under
oath about her educational attainment persisted even after being given
counsels assistance in the execution of the second affidavit, as well as
more time to contemplate the matter. Unfortunately, the lower court
sustained the prosecutions objection to the question on the ground of
irrelevance when the line of testing could have tested Alfaro's penchant
for "accuracy and truthfulness."
Ironically, notwithstanding the trial courts disallowance of the defenses
attempts to impeach Alfaro's character, and the rule that "(e)vidence of
the good character of a witness is not admissible until such character has
been impeached,"8 the trial court allowed the prosecution to present Atty.
Pedro Rivera9 to testify positively on Alfaros character. Worse yet, the
trial court disallowed the defense from presenting Atty. Riveras earlier
statement to impeach the latters credibility; again, this was disallowed on
the ground of immateriality. When a proffer of evidence 10 was made by
the defense following such disallowance, the trial court struck the proffer
from the record on the ground that it was allegedly improper on crossexamination.

The notion that witness Alfaro was able to withstand her cross
examination appears sustainable in large part because her cross
examination was so emasculated by the trial courts inordinate protection
of her, which went so far as to improperly accord her the right reserved
for an accused. Taken together with repeated instances of unwarranted
exertion of effort to wipe the record clean of some entries that cast doubt
on Alfaros credibility, the trial courts actions show that it had a bias
towards upholding the truthfulness of Alfaros testimony.
The trial courts treatment of documentary evidence also suffered from
mismatched ascription discarding legal presumptions without evidence
to the contrary while giving evidentiary weight to unsubstantiated
speculation. For instance, in rejecting Webbs alibi defense, the trial court
used mere speculation that the accuseds family influenced the
production of false entries in official documents to defeat the legal
presumption of said documents accuracy and regularity of issuance.
Notably, the United States Immigration and Naturalization Service (US
INS) Certification, which confirmed that Webb was in the United States
from March 1991 until October 1992, was authenticated by no less than
the Office of the U.S. Attorney General and the U.S. State Department.
Furthermore, this official certification of a sovereign state. having passed
through formal diplomatic channels, was authenticated by the
Department of Foreign Affairs. As discussed in the main decision, such
official documents as the authenticated U.S. INS Certification enjoy the
presumption of accuracy of the entries therein.11 Official documents are
not infallible, but the presumption that they are accurate can only be
overcome with evidence. Unfortunately, in the mind of the trial court, pure
conjecture and not hard evidence was allowed to defeat a legal
presumption.
Clearly, the trial courts decision in this case was, in significant measure,
the product of switched attributions as to who should enjoy certain rights
and what should be presumed under the law. This behavior on the part of
the trial court and the effect it had on the factual conclusions on the
credibility of Jessica Alfaro and on the presence of Hubert Webb in the
Philippines at the time of the commission of the crime cannot be upheld.

Republic of the Philippines

SUPREME COURT
Manila

MARIA LOURDES P. A. SERENO

Associate Justice

EN BANC
G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep.

CRISPIN BELTRAN, and Rep. LIZA L. MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and
BLAS F. OPLE, in his capacity as Secretary of Foreign
Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65
assails and seeks to nullify the Non-Surrender Agreement concluded by
and between the Republic of the Philippines (RP) and the United States
of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to
represent the marginalized sectors of society. Respondent Blas F. Ople,
now deceased, was the Secretary of Foreign Affairs during the period
material to this case. Respondent Alberto Romulo was impleaded in his
capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome
Statute3 establishing the International Criminal Court (ICC) with "the
power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national
criminal jurisdictions."4 The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression. 5
On December 28, 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is "subject to
ratification, acceptance or approval" by the signatory states. 6 As of the
filing of the instant petition, only 92 out of the 139 signatory countries
appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and
defines as "persons" of the RP and US from frivolous and harassment
suits that might be brought against them in international tribunals. 8 It is
reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar
bilateral agreements have been effected by and between the US and 33
other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or
former Government officials, employees (including contractors),
or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall
not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any
other entity or third country, or expelled to a third country,
for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been
established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree
to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express

consent of the Government of the Republic of the Philippines

[GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers
a person of the [USA] to a third country, the [GRP] will not agree
to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express
consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate
the Agreement. The provisions of this Agreement shall continue to
apply with respect to any act occurring, or any allegation arising,
before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on
the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of diplomatic
notes constituted a legally binding agreement under international law;
and that, under US law, the said agreement did not require the advice
and consent of the US Senate. 10
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it
be struck down as unconstitutional, or at least declared as without force
and effect.
For their part, respondents question petitioners standing to maintain a
suit and counter that the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for its efficacy. And for
reasons detailed in their comment, respondents assert the
constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA]
SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE

[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE

PHILIPPINE SENATE.
A. Whether by entering into the x x
x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived and
relinquished our only legitimate recourse through
the Rome Statute of the [ICC] to prosecute and try
"persons" as defined in the x x x Agreement, x x x or
literally any conduit of American interests, who have
committed crimes of genocide, crimes against humanity,
war crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of
the Rome Statute of the [ICC] the [RP] President and the
[DFA] Secretary x x x are obliged by the principle of good
faith to refrain from doing all acts which would
substantially impair the value of the undertaking as
signed.
C. Whether the x x x Agreement constitutes an act which
defeats the object and purpose of the Rome Statute of
the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the
President affixed on the Rome Statute of the International
Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is
void and unenforceable for grave abuse of discretion
amounting to lack or excess of jurisdiction in connection
with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS
VOID AB INITIO FOR CONTRACTING OBLIGATIONS
THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE
WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST

TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x

x x.11
The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the
question of whether or not respondents gravely abused their discretion in
concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and
undermines the Rome Statute and other treaties. But because
respondents expectedly raised it, we shall first tackle the issue of
petitioners legal standing.

actually sue in the public interest.18 Consequently, in a catena of

cases,19 this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit
primarily as concerned citizens raising issues of transcendental
importance, both for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other
government action, a petitioner needs to meet certain specific
requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.20 expounded on this requirement, thus:

The Courts Ruling

This petition is bereft of merit.

In a long line of cases, however, concerned citizens, taxpayers and

legislators when specific requirements have been met have been given
standing by this Court.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the
issue of the validity or invalidity of the Agreement carries with it
constitutional significance and is of paramount importance that justifies its
standing. Cited in this regard is what is usually referred to as the
emergency powers cases,12 in which ordinary citizens and taxpayers were
accorded the personality to question the constitutionality of executive
issuances.
Locus standi is "a right of appearance in a court of justice on a given
question."13 Specifically, it is "a partys personal and substantial interest in
a case where he has sustained or will sustain direct injury as a result" 14 of
the act being challenged, and "calls for more than just a generalized
grievance."15 The term "interest" refers to material interest, as
distinguished from one that is merely incidental.16 The rationale for
requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 17
Locus standi, however, is merely a matter of procedure and it has been
recognized that, in some cases, suits are not brought by parties who
have been personally injured by the operation of a law or any other
government act, but by concerned citizens, taxpayers, or voters who

When suing as a citizen, the interest of the petitioner assailing the

constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also
that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of. In fine, when the
proceeding involves the assertion of a public right, the mere fact that he
is a citizen satisfies the requirement of personal interest. 21
In the case at bar, petitioners representatives have complied with the
qualifying conditions or specific requirements exacted under the locus
standi rule. As citizens, their interest in the subject matter of the petition is
direct and personal. At the very least, their assertions questioning the
Agreement are made of a public right, i.e., to ascertain that
the Agreement did not go against established national policies, practices,
and obligations bearing on the States obligation to the community of
nations.
At any event, the primordial importance to Filipino citizens in general of
the issue at hand impels the Court to brush aside the procedural barrier
posed by the traditional requirement of locus standi, as we have done in
a long line of earlier cases, notably in the old but oft-cited emergency
powers cases22 and Kilosbayan v. Guingona, Jr.23In cases of

transcendental importance, we wrote again in Bayan v. Zamora,24 "The

Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of
judicial review."
Moreover, bearing in mind what the Court said in Taada v. Angara, "that
it will not shirk, digress from or abandon its sacred duty and authority to
uphold the Constitution in matters that involve grave abuse of discretion
brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government," 25 we cannot but resolve
head on the issues raised before us. Indeed, where an action of any
branch of government is seriously alleged to have infringed the
Constitution or is done with grave abuse of discretion, it becomes not
only the right but in fact the duty of the judiciary to settle it. As in this
petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.

of notes is frequently resorted to, either because of its speedy procedure,

or, sometimes, to avoid the process of legislative approval. 28
In another perspective, the terms "exchange of notes" and "executive
agreements" have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action.29 On the other hand, executive agreements concluded
by the President "sometimes take the form of exchange of notes and at
other times that of more formal documents denominated agreements or
protocols."30 As former US High Commissioner to the Philippines Francis
B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes
be difficult of ready ascertainment. 31 x x x

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium
for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain wellrecognized international doctrines, practices, and jargonsis untenable.
One of these is the doctrine of incorporation, as expressed in Section 2,
Article II of the Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international jurisprudence as
part of the law of the land and adheres to the policy of peace,
cooperation, and amity with all nations.26 An exchange of notes falls "into
the category of inter-governmental agreements," 27 which is an
internationally accepted form of international agreement. The United
Nations Treaty Collections (Treaty Reference Guide) defines the term as
follows:
An "exchange of notes" is a record of a routine agreement, that has many
similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession
of the one signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the offering State to
record its assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of exchange

It is fairly clear from the foregoing disquisition that E/N BFO-028-03be

it viewed as the Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to be boundis a
recognized mode of concluding a legally binding international written
contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty
as "an international agreement concluded between states in written form
and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation."32 International agreements may be in the form of
(1) treaties that require legislative concurrence after executive ratification;
or (2) executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal and
deal with a narrower range of subject matters than treaties. 33
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting
states concerned,34 as long as the negotiating functionaries have
remained within their powers.35 Neither, on the domestic sphere, can one
be held valid if it violates the Constitution. 36Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from
the concurrence-requirement aspect.37 As has been observed by US

constitutional scholars, a treaty has greater "dignity" than an executive

agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the
people;38 a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment. 39
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the
following observations made by US legal scholars: "[I]nternational
agreements involving political issues or changes of national policy and
those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of
detail carrying out well established national policies and traditions and
those involving arrangements of a more or less temporary nature take the
form of executive agreements." 40
Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered
by an executive agreement, such as commercial/consular relations, mostfavored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo
v. CFI of Zambales and Merchant,41holding that an executive agreement
through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering, on a
given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form
of agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement
each labor under the pacta sunt servanda42 principle.

As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of
foreign affairs has become more complex and the domain of international
law wider, as to include such subjects as human rights, the environment,
and the sea. In fact, in the US alone, the executive agreements executed
by its President from 1980 to 2000 covered subjects such as defense,
trade, scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among
others.43 Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best
interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of
executive agreements as such concluded from time to time. Hundreds of
executive agreements, other than those entered into under the tradeagreement act, have been negotiated with foreign governments. x x x
They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treatyauthorized44 or a treaty-implementing executive agreement, 45 which
necessarily would cover the same matters subject of the underlying
treaty.
But over and above the foregoing considerations is the fact thatsave
for the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution46when a treaty is required, the Constitution does not
classify any subject, like that involving political issues, to be in the form
of, and ratified as, a treaty. What the Constitution merely prescribes is
that treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process.
Petitioners reliance on Adolfo47 is misplaced, said case being
inapplicable owing to different factual milieus. There, the Court held that
an executive agreement cannot be used to amend a duly ratified and
existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement
that does not require the concurrence of the Senate for its ratification may
not be used to amend a treaty that, under the Constitution, is the product
of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive
agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length
the third main issue raised, referring to the validity and effectivity of
the Agreement without the concurrence by at least two-thirds of all the
members of the Senate. The Court has, in Eastern Sea Trading,48 as
reiterated in Bayan,49 given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without
the necessity of subsequent Congressional approval has been confirmed
by long usage. From the earliest days of our history, we have entered
executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously
questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the
establishment of the ICC and is null and void insofar as it unduly restricts
the ICCs jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that the Agreement was constituted solely for
the purpose of providing individuals or groups of individuals with immunity
from the jurisdiction of the ICC; and such grant of immunity through nonsurrender agreements allegedly does not legitimately fall within the scope
of Art. 98 of the Rome Statute. It concludes that state parties with nonsurrender agreements are prevented from meeting their obligations under
the Rome Statute, thereby constituting a breach of Arts.
27,50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome
Statute is to ensure that those responsible for the worst possible crimes
are brought to justice in all cases, primarily by states, but as a last resort,
by the ICC; thus, any agreementlike the non-surrender agreement
that precludes the ICC from exercising its complementary function of
acting when a state is unable to or unwilling to do so, defeats the object
and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the
imperatives of good faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as signed. Adding a
nullifying ingredient to the Agreement, according to petitioner, is the fact

that it has an immoral purpose or is otherwise at variance with a priorly

executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or
undermine, nor does it differ from, the Rome Statute. Far from going
against each other, one complements the other. As a matter of fact, the
principle of complementarity underpins the creation of the ICC. As aptly
pointed out by respondents and admitted by petitioners, the jurisdiction of
the ICC is to "be complementary to national criminal jurisdictions [of the
signatory states]."54 Art. 1 of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x
x shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern, as referred to in this
Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute
declares that "it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes." This provision
indicates that primary jurisdiction over the so-called international crimes
rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under
Art. 17, par. 155 of the Rome Statute.
Of particular note is the application of the principle of ne bis in
idem56 under par. 3 of Art. 20, Rome Statute, which again underscores the
primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
relevant, the provision states that "no person who has been tried by
another court for conduct x x x [constituting crimes within its jurisdiction]
shall be tried by the [International Criminal] Court with respect to the
same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue
against the idea of jurisdictional conflict between the Philippines, as party
to the non-surrender agreement, and the ICC; or the idea of the
Agreement substantially impairing the value of the RPs undertaking
under the Rome Statute. Ignoring for a while the fact that the RP signed
the Rome Statute ahead of the Agreement, it is abundantly clear to us

that the Rome Statute expressly recognizes the primary jurisdiction of

states, like the RP, over serious crimes committed within their respective
borders, the complementary jurisdiction of the ICC coming into play only
when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by
entering into the Agreement, violated its duty required by the imperatives
of good faith and breached its commitment under the Vienna
Convention57 to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statutehas to be rejected outright. For
nothing in the provisions of the Agreement, in relation to the Rome
Statute, tends to diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC. Lest it be overlooked, the Rome Statute contains a
proviso that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform an act
that would violate some international agreement it has entered into. We
refer to Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

obliging the Philippines to follow any provision in the treaty would be

premature.
As a result, petitioners argument that State-Parties with non-surrender
agreements are prevented from meeting their obligations under the Rome
Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are
only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the
Agreement is not incompatible with the Rome Statute. Specifically, Art.
90(4) provides that "[i]f the requesting State is a State not Party to this
Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the
request for surrender from the Court. x x x" In applying the provision,
certain undisputed facts should be pointed out: first, the US is neither a
State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even
assuming that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome
Statute.

xxxx
Sovereignty Limited by International Agreements
2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations under
international agreements pursuant to which the consent of a sending
State is required to surrender a person of that State to the Court, unless
the Court can first obtain the cooperation of the sending State for the
giving of consent for the surrender.
Moreover, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged to
refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification
by the Senate. Thus, it is only obliged to refrain from acts which would
defeat the object and purpose of the Rome Statute. Any argument

Petitioner next argues that the RP has, through the Agreement, abdicated
its sovereignty by bargaining away the jurisdiction of the ICC to prosecute
US nationals, government officials/employees or military personnel who
commit serious crimes of international concerns in the Philippines.
Formulating petitioners argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being
done by its waiving or abandoning its right to seek recourse through the
Rome Statute of the ICC for erring Americans committing international
crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of
affirmance and confirmance of the Philippines national criminal
jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP
either to prosecute criminal offenses equally covered by the Rome
Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines
may decide to try "persons" of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt

not to exercise its criminal jurisdiction over its erring citizens or over US
"persons" committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to "persons" of
the US whom the Philippines refuses to prosecute, the country would, in
effect, accord discretion to the US to exercise either its national criminal
jurisdiction over the "person" concerned or to give its consent to the
referral of the matter to the ICC for trial. In the same breath, the US must
extend the same privilege to the Philippines with respect to "persons" of
the RP committing high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the
Philippines agreeing to undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdictionto the extent agreed
uponto subjects of another State due to the recognition of the principle
of extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59
a case involving the implementation of the criminal jurisdiction provisions
of the RP-US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as
custody), in relation to long-recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents
of a foreign State allowed to enter another States territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be
predicated on the postulate that some of its provisions constitute a virtual
abdication of its sovereignty. Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty.
The Constitution, as drafted, did not envision a reclusive Philippines
isolated from the rest of the world. It even adheres, as earlier stated, to
the policy of cooperation and amity with all nations. 60
By their nature, treaties and international agreements actually have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one contracting party to grant
the same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international
law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution. 61 Such waiver does not amount to an

unconstitutional diminution or deprivation of jurisdiction of Philippine

courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for
imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it,
"leaves criminals immune from responsibility for unimaginable atrocities
that deeply shock the conscience of humanity; x x x it precludes our
country from delivering an American criminal to the [ICC] x x x." 63
The above argument is a kind of recycling of petitioners earlier position,
which, as already discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to
international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the nonsurrender agreement, as aptly described by the Solicitor General, "is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and
competence of the countrys judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the
Agreement would allow Filipinos and Americans committing high crimes
of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized
under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before
the ICC, assuming, for the nonce, that all the formalities necessary to
bind both countries to the Rome Statute have been met. For perspective,
what the Agreement contextually prohibits is the surrender by either party
of individuals to international tribunals, like the ICC, without the consent
of the other party, which may desire to prosecute the crime under its
existing laws. With the view we take of things, there is nothing immoral or
violative of international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the non-surrender agreement
over an offense considered criminal by both Philippine laws and the
Rome Statute.

No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement. And without specifically saying so,
petitioner would argue that the non-surrender agreement was executed
by the President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above
posture of petitioner, the same having been discussed at length earlier
on. As to the second portion, We wish to state that petitioner virtually
faults the President for performing, through respondents, a task conferred
the President by the Constitutionthe power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President,
as head of state and government, is the sole organ and authority in the
external affairs of the country.65 The Constitution vests in the President
the power to enter into international agreements, subject, in appropriate
cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify
binding executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of
Foreign Affairs, acted within the scope of the authority and discretion
vested in her by the Constitution. At the end of the day, the Presidentby
ratifying, thru her deputies, the non-surrender agreementdid nothing
more than discharge a constitutional duty and exercise a prerogative that
pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of
the other issues raised herein, it may perhaps be pertinent to remind all
and sundry that about the time this petition was interposed, such issue of
ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.67 As the Court emphasized in said case, the power to ratify a
treaty, the Statute in that instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured

the latters consent to the ratification of the treaty, refuse to ratify it. 68 This
prerogative, the Court hastened to add, is the Presidents alone and
cannot be encroached upon via a writ of mandamus. Barring intervening
events, then, the Philippines remains to be just a signatory to the Rome
Statute. Under Art. 12569 thereof, the final acts required to complete the
treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic
Act No. (RA) 9851, otherwise known as the "Philippine Act on Crimes
Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense
with the investigation or prosecution of a crime punishable under this Act
if another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in
the Philippines to the appropriate international court, if any, or to another
State pursuant to the applicable extradition laws and treaties. (Emphasis
supplied.)
A view is advanced that the Agreement amends existing municipal laws
on the States obligation in relation to grave crimes against the law of
nations, i.e., genocide, crimes against humanity and war crimes. Relying
on the above-quoted statutory proviso, the view posits that the Philippine
is required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not
exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has
only two options, to wit: (1) surrender the accused to the proper
international tribunal; or (2) surrender the accused to another State if
such surrender is "pursuant to the applicable extradition laws and
treaties." But the Philippines may exercise these options only in cases
where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime;" otherwise,

the Philippines must prosecute the crime before its own courts pursuant
to RA 9851.
Posing the situation of a US national under prosecution by an
international tribunal for any crime under RA 9851, the Philippines has
the option to surrender such US national to the international tribunal if it
decides not to prosecute such US national here. The view asserts that
this option of the Philippines under Sec. 17 of RA 9851 is not subject to
the consent of the US, and any derogation of Sec. 17 of RA 9851, such
as requiring the consent of the US before the Philippines can exercise
such option, requires an amendatory law. In line with this scenario, the
view strongly argues that the Agreement prevents the Philippines
without the consent of the USfrom surrendering to any international
tribunal US nationals accused of crimes covered by RA 9851, and, thus,
in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly
impressed that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the
"generally accepted principles of international law as part of the law of the
land," the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law
or custom and for which reason it assumes the status of an enforceable
domestic law in the context of the aforecited constitutional provision. As a
corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement, which,
as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the
argument goes, seeks to frustrate the objects of the principles of law or
alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced
considers the Agreement inefficacious, unless it is embodied in a treaty
duly ratified with the concurrence of the Senate, the theory being that a
Senate- ratified treaty partakes of the nature of a municipal law that can
amend or supersede another law, in this instance Sec. 17 of RA 9851 and
the status of the Rome Statute as constitutive of enforceable domestic
law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find
that the Agreement does not amend or is repugnant to RA 9851. For

another, the view does not clearly state what precise principles of law, if
any, the Agreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the
Rome Statute as the former merely reinforces the primacy of the national
jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among
others. The jurisdiction of the ICC pursuant to the Rome Statute over high
crimes indicated thereat is clearly and unmistakably complementary to
the national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes
against international humanitarian law, genocide and other crimes against
humanity;70 (2) provides penal sanctions and criminal liability for their
commission;71 and (3) establishes special courts for the prosecution of
these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the
tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA
9851 as requiring the Philippine State to surrender to the proper
international tribunal those persons accused of crimes sanctioned under
said law if it does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above quoted proviso
clearly provides discretion to the Philippine State on whether to
surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory
construction that the word "may" denotes discretion, and cannot be
construed as having mandatory effect.73 Thus, the pertinent second
pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the
Philippine State.
1avvphi1

Besides, even granting that the surrender of a person is mandatorily

required when the Philippines does not exercise its primary jurisdiction in
cases where "another court or international tribunal is already conducting
the investigation or undertaking the prosecution of such crime," still, the
tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made "to another
State pursuant to the applicable extradition laws and treaties." The
Agreement can already be considered a treaty following this Courts
decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In
Nicolas, We held that "an executive agreement is a treaty within the

meaning of that word in international law and constitutes enforceable

domestic law vis--vis the United States."76
Likewise, the Philippines and the US already have an existing extradition
treaty, i.e., RP-US Extradition Treaty, which was executed on November
13, 1994. The pertinent Philippine law, on the other hand, is Presidential
Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would neither violate nor
run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda77 is similarly improper. In that
case, several petitions were filed questioning the power of the President
to enter into foreign loan agreements. However, before the petitions could
be resolved by the Court, the Office of the Solicitor General filed a
Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network
Project, thus rendering the petition moot. In resolving the case, the Court
took judicial notice of the act of the executive department of the
Philippines (the President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the
legal implications of an executive agreement. He stated that "an
executive agreement has the force and effect of law x x x [it] cannot
amend or repeal prior laws."78 Hence, this argument finds no application
in this case seeing as RA 9851 is a subsequent law, not a prior one.
Notably, this argument cannot be found in the ratio decidendi of the case,
but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is
inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RPUS Extradition Treaty, "[a]n offense shall be an extraditable offense if it is
punishable under the laws in both Contracting Parties x x x,"79 and
thereby concluding that while the Philippines has criminalized under RA
9851 the acts defined in the Rome Statute as war crimes, genocide and
other crimes against humanity, there is no similar legislation in the US. It
is further argued that, citing U.S. v. Coolidge, in the US, a person cannot
be tried in the federal courts for an international crime unless Congress
adopts a law defining and punishing the offense.
This view must fail.

On the contrary, the US has already enacted legislation punishing the

high crimes mentioned earlier. In fact, as early as October 2006, the US
enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part
I, Title 18 of the United States Code Annotated (USCA) provides for the
criminal offense of "war crimes" which is similar to the war crimes found
in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United
States, commits a war crime, in any of the circumstances
described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death
results to the victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection
(a) are that the person committing such war crime or the victim of
such war crime is a member of the Armed Forces of the United
States or a national of the United States (as defined in Section
101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term "war crime"
means any conduct
(1) Defined as a grave breach in any of the international
conventions signed at Geneva 12 August 1949, or any
protocol to such convention to which the United States is
a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to
the Hague Convention IV, Respecting the Laws and
Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3
(as defined in subsection [d]) when committed in the
context of and in association with an armed conflict not of
an international character; or
(4) Of a person who, in relation to an armed conflict and
contrary to the provisions of the Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and
Other Devices as amended at Geneva on 3 May 1996
(Protocol II as amended on 3 May 1996), when the United
States is a party to such Protocol, willfully kills or causes
serious injury to civilians.80
1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized

genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace or in
time of war and with specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or religious group as
such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental
faculties of members of the group through drugs, torture,
or similar techniques;

international custom, as evidence of a general practice accepted as law;

(3) the general principles of law recognized by civilized nations; and (4)
subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law. The report does not fall under
any of the foregoing enumerated sources. It cannot even be considered
as the "teachings of highly qualified publicists." A highly qualified publicist
is a scholar of public international law and the term usually refers to legal
scholars or "academic writers."82 It has not been shown that the
authors83 of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in
the definitions of the crimes are nonexistent. To highlight, the table below
shows the definitions of genocide and war crimes under the Rome
Statute vis--vis the definitions under US laws:
Rome Statute

Article 6
(4) subjects the group to conditions of life that are
Genocide
intended to cause the physical destruction of the group in
whole or in part;
For the purpose of this Statute, "genocide"
means any of the following acts committed
(5) imposes measures intended to prevent births within with intent to destroy, in whole or in part, a
the group; or
national, ethnical, racial or religious group, as
such:
(6) transfers by force children of the group to another
group;
(a) Killing members of the group;
shall be punished as provided in subsection (b). 81
Arguing further, another view has been advanced that the current US
laws do not cover every crime listed within the jurisdiction of the ICC and
that there is a gap between the definitions of the different crimes under
the US laws versus the Rome Statute. The view used a report written by
Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US
Military and the International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have
any weight or value under international law. Article 38 of the Statute of the
International Court of Justice (ICJ) lists the sources of international law,
as follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2)

(b) Causing serious bodily or mental

harm to members of the group;

US Law
1091. Genocide

(a) Basic Offense Whoever, whether in the

time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members
of that group;

(3) causes the permanent impairment of the

(c) Deliberately inflicting on the group mental faculties of members of the group
conditions of life calculated to bring
through drugs, torture, or similar techniques;
about its physical destruction in whole
or in part;
(4) subjects the group to
conditions of life that are
(d) Imposing measures intended to
intended to cause the physic
prevent births within the group;
destruction of the group in
whole or in part;
(e) Forcibly transferring children of the
group to another group.
(5) imposes measures
intended to prevent births

within the group; or

(6) transfers by force children
of the group to another group;
shall be punished as provided in
subsection (b).
Article 8
War Crimes
2. For the purpose of this Statute,
"war crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
the following acts against
persons or property protected
under the provisions of the
relevant Geneva Convention:
x x x84
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of
the following acts committed
against persons taking no
active part in the hostilities,

(d) Definition As used in this Section

the term "war crime" means any
conduct
(1) Defined as a grave breach in any
of the international conventions
signed at Geneva 12 August 1949, or
any protocol to such convention to
which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land, signed
18 October 1907;

including members of armed

forces who have laid down
their arms and those placed
hors de combat by sickness,
wounds, detention or any
other cause:
xxxx
(d) Paragraph 2 (c) applies to
armed conflicts not of an
international character and
thus does not apply to
situations of internal
disturbances and tensions,
such as riots, isolated and
sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of
the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely, any
of the following acts: x x x.

(3) Which constitutes a grave breach

of common Article 3 (as defined in
subsection [d]85) when committed in
the context of and in association with
an armed conflict not of an
Evidently, the gaps pointed out as to the definition of the crimes are not
international character; or
present. In fact, the report itself stated as much, to wit:
(4) Of a person who, in relation to an
Few believed there were wide differences between the crimes under the
armed conflict and contrary to the
jurisdiction of the Court and crimes within the Uniform Code of Military
provisions of the Protocol on
Justice that would expose US personnel to the Court. Since US military
Prohibitions or Restrictions on the
lawyers were instrumental in drafting the elements of crimes outlined in
Use of Mines, Booby-Traps and Other
the Rome Statute, they ensured that most of the crimes were consistent
Devices as amended at Geneva on 3
with those outlined in the UCMJ and gave strength to complementarity for
May 1996 (Protocol II as amended on
the US. Small areas of potential gaps between the UCMJ and the Rome
3 May 1996), when the United States
Statute, military experts argued, could be addressed through existing
is a party to such Protocol, willfully
military laws.87 x x x
kills or causes serious injury to
civilians.86

The report went on further to say that "[a]ccording to those involved, the
elements of crimes laid out in the Rome Statute have been part of US
military doctrine for decades."88 Thus, the argument proffered cannot
stand.
Nonetheless, despite the lack of actual domestic legislation, the US
notably follows the doctrine of incorporation. As early as 1900, the
esteemed Justice Gray in The Paquete Habana89 case already held
international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of labor,
research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted
to by judicial tribunals, not for the speculations of their authors concerning
what the law ought to be, but for the trustworthy evidence of what the law
really is.90(Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite
the lack of domestic legislation. The cited ruling in U.S. v.
Coolidge,91 which in turn is based on the holding in U.S. v. Hudson, 92 only
applies to common law and not to the law of nations or international
law.93 Indeed, the Court in U.S. v. Hudson only considered the question,
"whether the Circuit Courts of the United States can exercise a common
law jurisdiction in criminal cases."94 Stated otherwise, there is no common
law crime in the US but this is considerably different from international
law.
The US doubtless recognizes international law as part of the law of the
land, necessarily including international crimes, even without any local
statute.95 In fact, years later, US courts would apply international law as a
source of criminal liability despite the lack of a local statute criminalizing it
as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted
that "[f]rom the very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as of enemy individuals." 97 It went on further to explain
that Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses

has not itself undertaken to codify that branch of international law or to
mark its precise boundaries, or to enumerate or define by statute all the
acts which that law condemns. An Act of Congress punishing the crime
of piracy as defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense
since it has adopted by reference the sufficiently precise definition of
international law. x x x Similarly by the reference in the 15th Article of War
to offenders or offenses that x x x by the law of war may be triable by
such military commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x x x, and which may constitutionally be
included within that jurisdiction.98 x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes against
humanity have attained the status of customary international law. Some
even go so far as to state that these crimes have attained the status of
jus cogens.99
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ.100 It is defined as the
"general and consistent practice of states recognized and followed by
them from a sense of legal obligation."101 In order to establish the
customary status of a particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive necessitates, the
subjective element.102
State practice refers to the continuous repetition of the same or similar
kind of acts or norms by States.103 It is demonstrated upon the existence
of the following elements: (1) generality; (2) uniformity and consistency;
and (3) duration.104 While, opinio juris, the psychological element, requires
that the state practice or norm "be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it."105
"The term jus cogens means the compelling law." 106 Corollary, "a jus
cogens norm holds the highest hierarchical position among all other
customary norms and principles."107 As a result, jus cogens norms are
deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so
fundamental to the existence of a just international legal order that states
cannot derogate from them, even by agreement." 109

These jus cogens crimes relate to the principle of universal jurisdiction,

i.e., "any state may exercise jurisdiction over an individual who commits
certain heinous and widely condemned offenses, even when no other
recognized basis for jurisdiction exists."110 "The rationale behind this
principle is that the crime committed is so egregious that it is considered
to be committed against all members of the international
community"111 and thus granting every State jurisdiction over the crime. 112

xxxx

Therefore, even with the current lack of domestic legislation on the part of
the US, it still has both the doctrine of incorporation and universal
jurisdiction to try these crimes.

xxxx

Consequently, no matter how hard one insists, the ICC, as an

international tribunal, found in the Rome Statute is not declaratory of
customary international law.
The first element of customary international law, i.e., "established,
widespread, and consistent practice on the part of States," 113 does not,
under the premises, appear to be obtaining as reflected in this simple
reality: As of October 12, 2010, only 114 114 States have ratified the Rome
Statute, subsequent to its coming into force eight (8) years earlier, or on
July 1, 2002. The fact that 114 States out of a total of 194 115 countries in
the world, or roughly 58.76%, have ratified the Rome Statute casts doubt
on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute.
Lest it be overlooked, the Philippines, judging by the action or inaction of
its top officials, does not even feel bound by the Rome Statute. Res ipsa
loquitur. More than eight (8) years have elapsed since the Philippine
representative signed the Statute, but the treaty has not been transmitted
to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:
Custom or customary international law means "a general and consistent
practice of states followed by them from a sense of legal obligation
[opinio juris] x x x." This statement contains the two basic elements of
custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way
they do.

The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.
The required duration can be either short or long. x x x

Duration therefore is not the most important element. More important is

the consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they do.
Do states behave the way they do because they consider it obligatory to
behave thus or do they do it only as a matter of courtesy? Opinio juris, or
the belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not law.116 (Emphasis
added.)
Evidently, there is, as yet, no overwhelming consensus, let alone
prevalent practice, among the different countries in the world that the
prosecution of internationally recognized crimes of genocide, etc. should
be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or
the psychological element must be deemed non-existent, for an inquiry
on why states behave the way they do presupposes, in the first place,
that they are actually behaving, as a matter of settled and consistent
practice, in a certain manner. This implicitly requires belief that the
practice in question is rendered obligatory by the existence of a rule of
law requiring it.117Like the first element, the second element has likewise
not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal
jurisdiction over the crimes enumerated therein as evidenced by it
requiring State consent.118 Even further, the Rome Statute specifically and
unequivocally requires that: "This Statute is subject to ratification,
acceptance or approval by signatory States."119 These clearly negate the
argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign

government must be afforded great respect. The power to enter into
executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of
Public Officers and Investigations, "[t]he power to enter into an executive
agreement is in essence an executive power. This authority of the
President to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine
jurisprudence."120 The rationale behind this principle is the inviolable
doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear
contravention of the law, courts should exercise utmost caution in
declaring any executive agreement invalid.
In light of the above consideration, the position or view that the
challenged RP-US Non-Surrender Agreement ought to be in the form of a
treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is
hereby DISMISSED for lack of merit. No costs.
SO ORDERED.