G.R. Nos.

159418-19 December 10, 2003

NORMA DE JOYA, PETITIONER,

vs.
THE JAIL WARDEN OF BATANGAS CITY AND HON. RUBEN A. GALVEZ AS PRESIDING JUDGE OF
BATANGAS CITY MUNICIPAL TRIAL COURT IN CITIES, BRANCH I, RESPONDENTS.

DECISION

CALLEJO, SR., J.:

This is a petition for a writ of habeas corpus filed by Norma de Joya praying for her release from the
Batangas City Jail on the claim that her detention was illegal.

The Antecedents

The petitioner was charged separately with violations of Batas Pambansa Blg. 22 before the Municipal
Trial Court In Cities in Batangas City. The docket numbers and accusatory portion of each of the
Informations reads:

Criminal Case No. 25484

That on or about September 28, 1994 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, well-knowing that she does not have funds in or credit with
the Solid Bank, Batangas Branch, Batangas City, did then and there, wilfully, unlawfully and feloniously
draw, make and issue to Flor Catapang de Tenorio, Solid Bank Check No. 040297 postdated to October
28, 1994 in the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, Philippine
Currency, to apply on account or for value, but when said check was presented for full payment with the
drawee bank within a period of ninety (90) days from the date of the check, the same was dishonored by
the drawee bank on the ground `account closed,' which in effect is even more than a dishonor for
insufficiency of funds, and despite notice of dishonor and demands made upon her to make good her
check by making proper arrangement with the drawee bank or pay her obligation in full directly to Flor
Catapang de Tenorio, accused failed and refused to do so, which acts constitute a clear violation of the
aforecited law, to the damage and prejudice of transaction in commercial documents in general and of
Flor Catapang de Tenorio in particular in the aforementioned amount.

CONTRARY TO LAW.1

...

Criminal Case No. 25773

That on or about October 17, 1994 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, well-knowing that she does not have fund in or credit with
the Security Bank and Trust Company, Batangas Branch, Batangas City, did then and there, wilfully,
unlawfully and feloniously draw, make and issue to Resurreccion T. Castillo, Security Bank and Trust
Company Check No. 038111 postdated to October 24, 1994 in the amount of TWO HUNDRED TWENTY-
FIVE THOUSAND PESOS (P225,000.00), Philippine Currency, to apply on account or for value, but when
said check was presented for full payment with the drawee bank within a period of ninety (90) days from
the date of the check, the same was dishonored by the drawee bank on the ground of `account closed,'
which in effect is even more than a dishonor for insufficiency of funds, and despite notice of dishonor and
demands made upon her to make good her check by making proper arrangement with the drawee bank or
pay her obligation in full directly to Resurreccion T. Castillo, accused failed and refused to do so, which
acts constitute a clear violation of the aforecited law, to the damage and prejudice of transaction in
commercial documents in general and of Resurreccion T. Castillo in particular in the aforementioned
amount.

CONTRARY TO LAW.2

When arraigned in both cases, the petitioner, assisted by counsel, pleaded not guilty. While trial was
going on, the petitioner jumped bail. No evidence was thereby adduced in her defense in any of the two
cases.
On December 14, 1995, the trial court promulgated its decision in Criminal Case No. 25484. The
petitioner and her counsel failed to appear despite due notice. The decretal portion of the decision reads
as follows:

WHEREFORE, this Court finds the accused Norma de Joya guilty of the crime of Violation of Batas
Pambansa Blg. 22, and hereby sentences said accused to suffer an imprisonment of one (1) year and to
indemnify the offended party, Flor Catapang Tenorio, in the sum of ONE HUNDRED FIFTY THOUSAND
(P150,000.00) PESOS, Philippine Currency.

SO ORDERED.3

On March 21, 1997, the decision in Criminal Case No. 25773 was likewise promulgated in absentia. The
decretal portion of the said decision reads:

WHEREFORE, the Prosecution having satisfactorily established the guilt of the accused beyond
reasonable doubt, this Court hereby sentences herein-accused Norma de Joya of imprisonment of ONE
(1) YEAR and to pay complainant Resurreccion Castillo of the amount of TWO HUNDRED TWENTY-
FIVE THOUSAND (P225,000.00) PESOS by way of damages.

SO ORDERED.4

The petitioner remained at large and no appeal was filed from any of the said decisions. In the meantime,
the Court issued Supreme Court Administrative Circular No. 12-2000 on November 21, 2000 enjoining all
courts and judges concerned to take notice of the ruling and policy of the Court enunciated in Vaca v.
Court of Appeals5 and Lim v. People6 with regard to the imposition of the penalty for violations of B.P. Blg.
22.

After five years, the petitioner was finally arrested while she was applying for an NBI clearance. She was
forthwith detained at the Batangas City Jail on December 3, 2002. On July 28, 2003, the petitioner filed an
urgent motion with the Municipal Trial Court of Batangas City asking the court to apply SC Admin. Circular
No. 12-2000 retroactively pursuant to Article 22 of the Revised Penal Code and to order her release from
detention. The public prosecutor opposed the motion. In an Order dated August 15, 2003, the trial court
denied the motion on three grounds: (a) its decision convicting the petitioner of violation of B.P. Blg. 22
had long become final and executory; hence, could no longer be amended to change the penalty imposed
therein; (b) the SC Circular should be applied prospectively; and (c) the SC Circular did not amend B.P.
Blg. 22, a substantive law, but merely encourages trial court judges to have a uniform imposition of fine.

Hence, the petition at bar.

The petitioner posits that SC Admin. Circular No. 12-2000 deleted the penalty of imprisonment for
violation of B.P. Blg. 22 and allows only the imposition of a fine. The trial court was mandated to apply SC
Admin. Circular No. 12-2000 retroactively conformably with Article 22 of the Revised Penal Code citing
the ruling of this Court in United States v. Pacrose.7 The petitioner prays that the Court declare her
detention illegal and order her release from the Batangas City Jail.

The Office of the Solicitor General (OSG) opposed the petition contending that:

1)

THE TWO (2) JUDGMENTS OF CONVICTION AGAINST THE PETITIONER HAD LONG ATTAINED
FINALITY AND COULD NO LONGER BE MODIFIED.

2)

ADMINISTRATIVE CIRCULAR NO. 12-2000 AS MODIFIED BY ADMINISTRATIVE CIRCULAR NO. 13-

2001 DID NOT DELETE THE PENALTY OF IMPRISONMENT IN BP 22 CASES.8

The OSG cited the ruling of this Court in Abarquez v. Court of Appeals.9

The petition has no merit.

Section 4, Rule 102 of the Rules of Court, as amended, provides that the writ of habeas corpus is not
allowed if the person alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record:
Sec. 4. When writ not allowed or discharged authorized. If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue
of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment; or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.

In this case, the petitioner was arrested and detained pursuant to the final judgment of the Municipal Trial
Court of Batangas City, convicting her of violation of B.P. Blg. 22. Irrefragably then, the petitioner is not
entitled to a writ of habeas corpus. Petitioner's reliance of our ruling in Ordonez v. Vinarao 10 that a
convicted person is entitled to benefit from the reduction of penalty introduced by the new law, citing
People v. Simon,11 is misplaced. Thus, her plea that as provided for in Article 22 of the Revised Penal
Code, SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should benefit her
has no basis.

First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is
not applicable. The circular applies only to those cases pending as of the date of its effectivity and not to
cases already terminated by final judgment.

Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000
merely lays down a rule of preference in the application of the penalties for violation of B.P. Blg. 22. It
does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin. Circular No. 12-
2000 merely urges the courts to take into account not only the purpose of the law but also the
circumstances of the accused whether he acted in good faith or on a clear mistake of fact without taint
of negligence and such other circumstance which the trial court or the appellate court believes relevant
to the penalty to be imposed. The Court thus emphasized that:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in
B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P.
Blg. 22. Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal
provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly
indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone
should be considered as the more appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge
decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not
be deemed a hindrance.

It is, therefore, understood that:

Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for violations
of B.P. Blg. 22;

The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition of a fine alone would best serve the
interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the
offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;

Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment. 12

B.P. Blg. 22 provides for alternative penalties of fine or imprisonment or both fine and imprisonment as
follows:

SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or
by a fine of not less than but not more than double the amount of the check which fine shall in no case
exceed two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. 13

The courts are given the discretion to choose whether to impose a single penalty or conjunctive penalties;
that is, whether to impose a penalty of fine, or a penalty of imprisonment only, or a penalty of both fine
and imprisonment.

In providing for alternative penalties in B.P. Blg. 22, Congress took into account the principal objectives of
the law, namely, the prohibition on the making of worthless checks and putting them in circulation. The
practice is prohibited by law because of its deleterious effects on public interest. The effects of the
increase of worthless checks transcend the private interest of the parties directly involved in the
transaction and touches the interest of the community at large. The mischief it creates is not only a wrong
to the payee or holder, but also an injury to the public. The harmful practice of putting valueless
commercial papers in circulation multiplied a thousand-fold can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of society and the public interest.
The law punishes the act not as an offense against property but an offense against public order. 14

However, in imposing penalties for crimes, the courts must bear in mind that Philippine penal law is based
on the Spanish penal code and has adopted features of the positivist theory of criminal law. The positivist
theory states that the basis for criminal liability is the sum total of the social and economic phenomena to
which the offense is expressed. The adoption of the aspects of the theory is exemplified by the
indeterminate sentence law, Article 4, paragraph 2 of the Revised Penal Code (impossible crime), Article
68 and Articles 11 to 14, not to mention Article 63 of the Revised Penal Code (penalties for heinous and
quasi-heinous crimes). Philippine penal law looks at the convict as a member of society. Among the
important factors to be considered in determining the penalty to be imposed on him are (1) his relationship
towards his dependents, family and their relationship with him; and (2) his relationship towards society at
large and the State. The State is concerned not only in the imperative necessity of protecting the social
organization against the criminal acts of destructive individuals but also in redeeming the individual for
economic usefulness and other social ends.15 The purpose of penalties is to secure justice. The penalties
imposed must not only be retributive but must also be reformative, to give the convict an opportunity to
live a new life and rejoin society as a productive and civic-spirited member of the community. The court
has to consider not only the primary elements of punishment, namely, the moral responsibility of the
convict, the relation of the convict to the private complainant, the intention of the convict, the temptation to
the act or the excuse for the crime - was it done by a rich man in the insolence of his wealth or by a poor
man in the extremity of his need? The court must also take into account the secondary elements of
punishment, namely, the reformation of the offender, the prevention of further offenses by the offender,
the repression of offenses in others.16 As Rousseau said, crimes can be thoroughly repressed only by a
system of penalties which, from the benignity they breathe, serve rather than to soften than to inflame
those on whom they are imposed.17 There is also merit in the view that punishment inflicted beyond the
merit of the offense is so much punishment of innocence.18

In this case, even if the Court applies SC Admin. Circular No. 12-2000, as revised, retroactively, the
petition must nevertheless be dismissed. The petitioner did not offer any evidence during trial. The
judgment of the court became final and executory upon her failure to appeal therefrom. Worse, the
petitioner remained at large for five long years. Were it not for her attempt to secure an NBI clearance,
she would have been able to elude the long arm of the law.

IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED for lack of merit.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

G.R. Nos. 115439-41 July 16, 1997

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and
GENEROSO S. SANSAET, respondents.

REGALADO, J.:

Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of
respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioner's motion for the
discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of
March 7, 1994 denying the motion for reconsideration of its preceding disposition. 1

The records show that during the dates material to this case, respondent Honrada was the Clerk of Court
and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in
Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then
Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing
attorney who served as counsel for Paredes in several instances pertinent to the criminal charges
involved in the present recourse.

The same records also represent that sometime in 1976, respondent Paredes applied for a free patent
over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved
and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for that
lot which is situated in the poblacion of San Francisco, Agusan del Sur.

However, in 1985, the Director of Lands filed an action 2 for the cancellation of respondent Paredes' patent and
certificate of title since the land had been designated and reserved as a school site in the aforementioned subdivision
survey. The trial court rendered judgment 3 nullifying said patent and title after finding that respondent Paredes had
obtained the same through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet served as
counsel of Paredes in that civil case. 4

Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the
Sangguniang Bayan and the preliminary investigation conducted thereon, an information for perjury 5 was
filed against respondent Paredes in the Municipal Circuit Trial Court. 6 On November 27, 1985, the Provincial Fiscal was,
however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of
prescription, hence the proceedings were terminated. 7 In this criminal case, respondent Paredes was likewise
represented by respondent Sansaet as counsel.

Nonetheless, respondent Sansaet was thereafter haled before the Tanodbayan for preliminary
investigation on the charge that, by using his former position as Provincial Attorney to influence and
induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated
Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes'
counsel of record therein.

On August 29, 1988, the Tanodbayan, issued a resolution 8 recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent, moved for reconsideration and,
because of its legal significance in this case, we quote some of his allegations in that motion:

. . . respondent had been charged already by the complainants before the Municipal Circuit
Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same
set of facts and the same evidence . . . but said case after arraignment, was ordered
dismissed by the court upon recommendation of the Department of Justice. Copy of
the dismissal order, certificate of arraignment and the recommendation of the Department of
Justice are hereto attached for ready reference; thus the filing of this case will be a case of
double jeopardy for respondent herein . . . 9 (Emphasis supplied.)

A criminal case was subsequently filed with the Sandiganbayan 10 charging respondent Paredes with a violation
of Section 3 (a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the defense was later
granted in respondent court's resolution of August 1, 1991 11 and the case was dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges
against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three
respondents herein for falsification of public documents. 12 He claimed that respondent Honrada, in conspiracy
with his herein co-respondents, simulated and certified as true copies certain documents purporting to be a notice of
arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of
Paredes on the perjury charge. 13These falsified documents were annexed to respondent Paredes' motion for
reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention
that the same would constitute double jeopardy.

In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was ever
received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury case; and
a certification of Presiding Judge Ciriaco Ario that said perjury case in his court did not reach the
arraignment stage since action thereon was suspended pending the review of the case by the Department
of Justice. 14

Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated
the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations and
Rectifications, 15respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary
investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed
by the trial court after he had been arraigned therein.

For that purpose, the documents which were later filed by respondent Sansaet in the preliminary
investigation were prepared and falsified by his co-respondents in this case in the house of respondent
Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon
the instigation and inducement of respondent Paredes. This was intended to pave the way for his
discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the
prosecution pursuant to their agreement.

Withal, in a resolution 16 dated February 24, 1992, the Ombudsman approved the filing of falsification charges against
all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected
by the Ombudsman on this evaluative legal position:

. . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence
of deliberate intent to conspire, would be unwittingly induced by another to commit a crime.
As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case
theory and the evidence which the defense was going to present. Moreover, the testimony
or confession of Atty. Sansaet falls under the mantle of privileged communication between
the lawyer and his client which may be objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution 17 and, ostensibly to forestall any further controversy, he
decided to file separate informations for falsification of public documents against each of the herein respondents. Thus,
three criminal cases, 18 each of which named one of the three private respondents here as the accused therein, were filed
in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan.

As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent
Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule
119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic
postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct
evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes.

Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client
privilege adverted to by the Ombudsman and invoked by the two other private respondents in their
opposition to the prosecution's motion, resolved to deny the desired discharge on this ratiocination:

From the evidence adduced, the opposition was able to establish that client and lawyer
relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and
after the period alleged in the information. In view of such relationship, the facts surrounding
the case, and other confidential matter must have been disclosed by accused Paredes, as
client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the
testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is
privileged. 19

Reconsideration of said resolution having been likewise denied, 20 the controversy was elevated to this Court by
the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent
Sandiganbayan.

The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether
or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the
attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to
testify as a particeps criminis.
As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which
existed between herein respondents Paredes and Sansaet during the relevant periods, the facts
surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as
client, to respondent Sansaet, as his lawyer. Accordingly, it found "no reason to discuss it further since
Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the
latter's consent." 21

The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the
facts thereof and actuations of both respondents therein constitute an exception to the rule. For a clearer
understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these
cases.

1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet
in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and this may
reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact
that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada
was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as
to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has
always referred to "any communication," without distinction or qualification. 22

In the American jurisdiction from which our present evidential rule was taken, there is no particular mode
by which a confidential communication shall be made by a client to his attorney. The privilege is not
confined to verbal or written communications made by the client to his attorney but extends as well to
information communicated by the client to the attorney by other means. 23

Nor can it be pretended that during the entire process, considering their past and existing relations as
counsel and client and, further, in view of the purpose for which such falsified documents were prepared,
no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The
clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in
behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft
case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the documents were
being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him
to witness the same except under conditions of secrecy and confidence.

2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for
which the latter stands charged, a distinction must be made between confidential communications relating
to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it
is admitted that the announced intention of a client to commit a crime is not included within the
confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in
the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged
criminal acts of respondents Paredes and Honrada that have already been committed and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true
that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes
were necessarily committed in the past. But for the application of the attorney-client privilege, however,
the period to be considered is the date when the privileged communication was made by the client to the
attorney in relation to either a crime committed in the past or with respect to a crime intended to be
committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that
the former has theretofore committed, he is given the protection of a virtual confessional seal which the
attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same
privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit
thereafter or in the future and for purposes of which he seeks the lawyer's advice.

Statements and communications regarding the commission of a crime already committed, made by a
party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the
unbroken stream of judicial dicta is to the effect that communications between attorney and client having
to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the
cloak of privileges ordinarily existing in reference to communications between attorney and
client. 25 (Emphases supplied.)

3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the
communications made to him by physical acts and/or accompanying words of Parades at the time he and
Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process
of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the
criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential
communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by Paredes but which he, in confederacy with
his present co-respondents, later committed. Having been made for purposes of a future offense, those
communications are outside the pale of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which
he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a
communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in
furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from
attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney
and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a
criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney
under certain circumstances may be bound to disclose at once in the interest of justice." 27

It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful
communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the
so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which
was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client,
would be one of the worst travesties in the rules of evidence and practice in the noble profession of law.

II

On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent
Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for
the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding
issue, did not pass upon this second aspect and the relief sought by the prosecution which are now
submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some
ancillary questions requiring preludial clarification.

1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not
respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that
issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this
Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of
justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding
it to the trial court. 28

2. A reservation is raised over the fact that the three private respondents here stand charged in three
separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman
recommended the filing of criminal charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy,
one information was filed against each of the three respondents here, resulting in three informations for
the same acts of falsification.

This technicality was, however, sufficiently explained away during the deliberations in this case by the
following discussion thereof by Mr. Justice Davide, to wit:

Assuming no substantive impediment exists to block Sansaet's discharge as state witness,

he can, nevertheless, be discharged even if indicted under a separate information. I
suppose the three cases were consolidated for joint trial since they were all raffled to the
Second Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the
Sandiganbayan allows consolidation in only one Division of cases arising from the same
incident or series of incidents, or involving common questions of law and fact. Accordingly,
for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged
as state witness. It is of no moment that he was charged separately from his co-accused.
While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly,
which was absent in the old provision, the consolidated and joint trial has the effect of
making the three accused co-accused or joint defendants, especially considering that they
are charged for the same offense. In criminal law, persons indicted for the same offense
and tried together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a
consolidation of the three cases, the several actions lost their separate identities and became a single
action in which a single judgment is rendered, the same as if the different causes of action involved had
originally been joined in a single action. 29
Indeed, the former provision of the Rules referring to the situation "(w)hen two or more persons are
charged with the commission of a certain offense" was too broad and indefinite; hence the word "joint"
was added to indicate the identity of the charge and the fact that the accused are all together charged
therewith substantially in the same manner in point of commission and time. The word "joint" means
"common to two or more," as "involving the united activity of two or more," or "done or produced by two or
more working together," or "shared by or affecting two or more. 30 Had it been intended that all the accused
should always be indicted in one and the same information, the Rules could have said so with facility, but it did not so
require in consideration of the circumstances obtaining in the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can be achieved by consolidation of the cases as an
alternative mode.

2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that
since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of
the conspiracy. Now, one of the requirements for a state witness is that he "does not appear to be the
most guilty." 31 not that he must be the least guilty 32 as is so often erroneously framed or submitted. The query would
then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state
witness.

To be sure, in People vs. Ramirez, et al. 33 we find this obiter:

It appears that Apolonio Bagispas was the real mastermind. It is believable that he
persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not
actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state
witness. All the perpetrators of the offense, including him, were bound in a conspiracy that
made them equally guilty.

However, prior thereto, in People vs. Roxas, et al., 34 two conspirators charged with five others in three separate
informations for multiple murder were discharged and used as state witnesses against their confederates. Subsequent
thereto, in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the co-conspirators was discharged from the information
charging him and two others with the crime of estafa. The trial court found that he was not the most guilty as, being a poor
and ignorant man, he was easily convinced by his two co-accused to open the account with the bank and which led to the
commission of the crime.

On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as
his co-accused, and should not be discharged as he did not appear to be not the most guilty, is untenable.
In other words, the Court took into account the gravity or nature of the acts committed by the accused to
be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal
penalty is imposable on all of them.

Eventually, what was just somehow assumed but not explicity articulated found expression in People
vs. Ocimar, et al., 36 which we quote in extenso:

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a
co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be
discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not
to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is
equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the
presentation of four (4) other witnesses, none of them could positively identify the accused except
Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash,
jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of
Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct
evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could
be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its
well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals, he was
only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery.
But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty.
What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will
be sent to jail. And by "most guilty" we mean the highest degree of culpability in terms of participation in
the commission of the offense and not necessarily the severity of the penalty imposed. While all the
accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty
if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no
evidence that he has at any time been convicted of any offense involving moral turpitude.

xxx xxx xxx

 Thus, We agree with the observations of the Solicitor General that the rule on the discharge
of an accused to be utilized as state witness clearly looks at his actual and individual
participation in the commission of the crime, which may or may not have been perpetrated
in conspiracy with the other accused. Since Bermudez was not individually responsible for
the killing committed on the occasion of the robbery except by reason of conspiracy, it
cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to
be a witness for the government is clearly warranted. (Emphasis ours.)

The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal
offense is based on the concurrence of criminal intent in their minds and translated into concerted
physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is
based on the classical school of thought, it is the identity of the mens rea which is considered the
predominant consideration and, therefore, warrants the imposition of the same penalty on the
consequential theory that the act of one is thereby the act of all.

Also, this is an affair of substantive law which should not be equated with the procedural rule on
the discharge of particeps criminis. This adjective device is based on other considerations, such as
the need for giving immunity to one of them in order that not all shall escape, and the judicial
experience that the candid admission of an accused regarding his participation is a guaranty that
he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which,
again, are based on judicial experience distilled into a judgmental policy.

III

The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent
Sansaet as a state witness are present and should have been favorably appreciated by the
Sandiganbayan.

Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification
charged in the criminal cases pending before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-respondents who steadfastly deny the charge
and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of
the case, hence there is absolute necessity for the testimony of Sansaet whose discharge is sought
precisely for that purpose. Said respondent has indicated his conformity thereto and has, for the purposes
required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanation and
Rectifications.

His testimony can be substantially corroborated on its material points by reputable witnesses, identified in
the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ario,
Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized
Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the criminal
cases through his letter-complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan
del Sur, who participated in the resolution asking their Provincial Governor to file the appropriate case
against respondent Paredes, and Francisco Macalit, who obtained the certification of non-arraignment
from Judge Ario.

On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been
convicted of any offense involving moral turpitude. Thus, with the confluence of all the requirements for
the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and
propose that he be allowed to testify as a state witness.

This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may
propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the
proposal and make the corresponding disposition. It must be emphasized, however, that such discretion
should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability of the attorney-client privilege.

This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement of
two members of its Second Division 37 and
the reconstitution thereof. In an inversely anticlimactic Manifestation and Comment 38 dated June 14, 1995, as required by
this Court in its resolution on December 5, 1994, the chairman and new members thereof 39 declared:

4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which
the Petition for Certiorari filed by the prosecution are based, was penned by Associate
 Justice Narciso T. Atienza and concurred in by the undersigned and Associate Justice
Augusto M. Amores;

5) That while the legal issues involved had been already discussed and passed upon by the
Second Division in the aforesaid Resolution, however, after going over the arguments
submitted by the Solicitor-General and re-assessing Our position on the matter, We
respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable
to setting aside the questioned Resolutions and to grant the prosecution's motion to
discharge accused Generoso Sansaet as state witness, upon authority of the Honorable
Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15)
days from notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impunged
resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and
given due course by respondent Sandiganbayan.

SO ORDERED.

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

Hermosisima, Jr. and Torres, Jr., JJ., are on leave.

G.R. No. 181409 February 11, 2010

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG, represented by

MEDIATRIX CARUNGCONG, as Administratrix, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and WILLIAM SATO, Respondents.

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. No criminal, but only civil liability shall result from the
commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the
following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line;

2. The widowed spouse with respect to the property which belonged to the deceased spouse
before the same shall have passed into the possession of another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime. (emphasis supplied)

For purposes of the aforementioned provision, is the relationship by affinity created between the husband
and the blood relatives of his wife (as well as between the wife and the blood relatives of her husband)
dissolved by the death of one spouse, thus ending the marriage which created such relationship by
affinity? Does the beneficial application of Article 332 cover the complex crime of estafa thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix1 of petitioner intestate
estate of her deceased mother Manolita Gonzales vda. de Carungcong, filed a complaint-affidavit2 for
estafa against her brother-in-law, William Sato, a Japanese national. Her complaint-affidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and resident of Unit 1111,
Prince Gregory Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly sworn, depose
and state that:

1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong Y

Gonzale[s], docketed as Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City,
Branch 104, being one (1) of her surviving daughters. Copy of the Letters of Administration dated
June 22, 1995 is hereto attached as Annex "A" to form an integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve the properties of the Intestate
Estate of Manolita Carungcong Y Gonzale[s], but also to recover such funds and/or properties as
property belonging to the estate but are presently in the possession or control of other parties.

3. After my appointment as Administratrix, I was able to confer with some of the children of my
sister Zenaida Carungcong Sato[,] who predeceased our mother Manolita Carungcong Y
Gonzales, having died in Japan in 1991.

4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d] 27 and 24
respectively, I was able to learn that prior to the death of my mother Manolita Carungcong Y
Gonzale[s], [s]pecifically on o[r] about November 24, 1992, their father William Sato, through
fraudulent misrepresentations, was able to secure the signature and thumbmark of my mother on a
Special Power of Attorney whereby my niece Wendy Mitsuko Sato, who was then only twenty (20)
years old, was made her attorney-in-fact, to sell and dispose four (4) valuable pieces of land in
Tagaytay City. Said Special Power of Attorney, copy of which is attached as ANNEX "A" of the
Affidavit of Wendy Mitsuko Sato, was signed and thumbmark[ed] by my mother because William
Sato told her that the documents she was being made to sign involved her taxes. At that time, my
mother was completely blind, having gone blind almost ten (10) years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my mother in the presence of Wendy,
my other niece Belinda Kiku Sato, our maid Mana Tingzon, and Governor Josephine Ramirez who
later became the second wife of my sisters widower William Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the belief that
they were in connection with her taxes, not knowing, since she was blind, that the same was in fact
a Special Power of Attorney to sell her Tagaytay properties.

7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers for the
property and made my niece Wendy Mitsuko Sato sign three (3) deeds of absolute sale in favor of
(a) Anita Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary Public Vicente B.
Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68, Book No. V, Series of 1992 of Notary Public
Vicente B. Custodio) and (c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of 1993
of Notary Public Toribio D. Labid). x x x

8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the deeds of
absolute sale were not the true and actual considerations received by her father William Sato from
the buyers of her grandmothers properties. She attests that Anita Ng actually paid P7,000,000.00
for the property covered by TCT No. 3148 and P7,034,000.00 for the property covered by TCT No.
3149. All the aforesaid proceeds were turned over to William Sato who undertook to make the
proper accounting thereof to my mother, Manolita Carungcong Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid P8,000,000.00 for the
property covered by Tax Declaration No. GR-016-0735, and the proceeds thereof were likewise
turned over to William Sato.

10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko C. Sato
has actual knowledge of the true amounts paid by the buyers, as stated in her Affidavit, since she
was the signatory thereto as the attorney-in-fact of Manolita Carungcong Y Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any position to oppose or to refuse her
fathers orders.

12. After receiving the total considerations for the properties sold under the power of attorney
fraudulently secured from my mother, which total P22,034,000.00, William Sato failed to account
 for the same and never delivered the proceeds to Manolita Carungcong Y Gonzale[s] until the
latter died on June 8, 1994.

13. Demands have been made for William Sato to make an accounting and to deliver the proceeds
of the sales to me as Administratrix of my mothers estate, but he refused and failed, and continues
to refuse and to fail to do so, to the damage and prejudice of the estate of the deceased Manolita
Carungcong Y Gonzale[s] and of the heirs which include his six (6) children with my sister Zenaida
Carungcong Sato. x x x3

Wendy Mitsuko Satos supporting affidavit and the special power of attorney allegedly issued by the
deceased Manolita Gonzales vda. de Carungcong in favor of Wendy were attached to the complaint-
affidavit of Mediatrix.

In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the complaint. 4 On
appeal, however, the Secretary of Justice reversed and set aside the resolution dated March 25, 1997
and directed the City Prosecutor of Quezon City to file an Information against Sato for violation of Article
315, paragraph 3(a) of the Revised Penal Code.5 Thus, the following Information was filed against Sato in
the Regional Trial Court of Quezon City, Branch 87:6

INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,] par. 3(a) of the
Revised Penal Code, committed as follows:

That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-named
accused, by means of deceit, did, then and there, wil[l]fully, unlawfully and feloniously defraud MANOLITA
GONZALES VDA. DE CARUNGCONG in the following manner, to wit: the said accused induced said
Manolita Gonzales Vda. De Carungcong[,] who was already then blind and 79 years old[,] to sign and
thumbmark a special power of attorney dated November 24, 1992 in favor of Wendy Mitsuko C. Sato,
daughter of said accused, making her believe that said document involved only her taxes, accused
knowing fully well that said document authorizes Wendy Mitsuko C. Sato, then a minor, to sell, assign,
transfer or otherwise dispose of to any person or entity of her properties all located at Tagaytay City, as
follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less and covered
by T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3148 with Tax
Declaration No. GR-016-0722, Cadastral Lot No. 7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3149 with Tax
Declaration No. GR-016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax Declaration No. GR-016-
1735, Cadastral Lot No. 7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the possession of the said
special power of attorney and other pertinent documents, said accused made Wendy Mitsuko Sato sign
the three (3) Deeds of Absolute Sale covering Transfer Certificate of Title [TCT] No. 3148
for P250,000.00, [TCT] No. 3149 for P250,000.00 and [Tax Declaration] GR-016-0735 for P650,000.00
and once in possession of the proceeds of the sale of the above properties, said accused, misapplied,
misappropriated and converted the same to his own personal use and benefit, to the damage and
prejudice of the heirs of Manolita Gonzales Vda. De Carungcong who died in 1994.

Contrary to law.7

Subsequently, the prosecution moved for the amendment of the Information so as to increase the amount
of damages from P1,150,000, the total amount stated in the deeds of sale, to P22,034,000, the actual
amount received by Sato.

Sato moved for the quashal of the Information, claiming that under Article 332 of the Revised Penal Code,
his relationship to the person allegedly defrauded, the deceased Manolita who was his mother-in-law, was
an exempting circumstance.
The prosecution disputed Satos motion in an opposition dated March 29, 2006.

In an order dated April 17, 2006,8 the trial court granted Satos motion and ordered the dismissal of the
criminal case:

The Trial Prosecutors contention is that the death of the wife of the accused severed the relationship of
affinity between accused and his mother-in-law. Therefore, the mantle of protection provided to the
accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised Penal Code convinces this Court of
the correctness of the contention of the [d]efense. While it is true that the death of Zenaida Carungcong-
Sato has extinguished the marriage of accused with her, it does not erase the fact that accused and
Zenaidas mother, herein complainant, are still son[-in-law] and mother-in-law and they remained son[-in-
law] and mother-in-law even beyond the death of Zenaida.

Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No criminal, but only civil
liability[,] shall result from the commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses, ascendants and descendants, or relatives by
affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code, preserves family harmony
and obviates scandal, hence even in cases of theft and malicious mischief, where the crime is committed
by a stepfather against his stepson, by a grandson against his grandfather, by a son against his mother,
no criminal liability is incurred by the accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG
12th Supp. 63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information meritorious, the same is GRANTED and,
as prayed for, case is hereby DISMISSED.

SO ORDERED.9 (underlining supplied in the original)

The prosecutions motion for reconsideration10 was denied in an order dated June 2, 2006.11

Dissatisfied with the trial courts rulings, the intestate estate of Manolita, represented by Mediatrix, filed a
petition for certiorari in the Court of Appeals12 which, however, in a decision13 dated August 9, 2007,
dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish the relationship by
affinity between her husband, private respondent Sato, and her mother Manolita, and does not bar the
application of the exempting circumstance under Article 332(1) of the Revised Penal Code in favor of
private respondent Sato.

We further agree with the submission of the [Office of the Solicitor General (OSG)] that nothing in the law
and/or existing jurisprudence supports the argument of petitioner that the fact of death of Zenaida
dissolved the relationship by affinity between Manolita and private respondent Sato, and thus removed the
protective mantle of Article 332 of the Revised Penal Code from said private respondent; and that
notwithstanding the death of Zenaida, private respondent Sato remains to be the son-in-law of Manolita,
and a brother-in-law of petitioner administratrix. As further pointed out by the OSG, the filing of the
criminal case for estafa against private respondent Sato already created havoc among members of the
Carungcong and Sato families as private respondents daughter Wendy Mitsuko Sato joined cause with
her aunt [Mediatrix] Carungcong y Gonzales, while two (2) other children of private respondent, William
Francis and Belinda Sato, took the side of their father.

There is a dearth of jurisprudence and/or commentaries elaborating on the provision of Article 332 of the
Revised Penal Code. However, from the plain language of the law, it is clear that the exemption from
criminal liability for the crime of swindling (estafa) under Article 315 of the Revised Penal Code applies to
private respondent Sato, as son-in-law of Manolita, they being "relatives by affinity in the same line" under
Article 332(1) of the same Code. We cannot draw the distinction that following the death of Zenaida in
1991, private respondent Sato is no longer the son-in-law of Manolita, so as to exclude the former from
the exempting circumstance provided for in Article 332 (1) of the Revised Penal Code.
Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory construction that where
the law does not distinguish, the courts should not distinguish. There should be no distinction in the
application of law where none is indicated. The courts could only distinguish where there are facts or
circumstances showing that the lawgiver intended a distinction or qualification. In such a case, the courts
would merely give effect to the lawgivers intent. The solemn power and duty of the Court to interpret and
apply the law does not include the power to correct by reading into the law what is not written therein.

Further, it is an established principle of statutory construction that penal laws are strictly construed against
the State and liberally in favor of the accused. Any reasonable doubt must be resolved in favor of the
accused. In this case, the plain meaning of Article 332 (1) of the Revised Penal Codes simple language is
most favorable to Sato.14

The appellate court denied reconsideration.15 Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial court. It cites the
commentary of Justice Luis B. Reyes in his book on criminal law that the rationale of Article 332 of the
Revised Penal Code exempting the persons mentioned therein from criminal liability is that the law
recognizes the presumed co-ownership of the property between the offender and the offended
party. Here, the properties subject of the estafa case were owned by Manolita whose daughter, Zenaida
Carungcong-Sato (Satos wife), died on January 28, 1991. Hence, Zenaida never became a co-owner
because, under the law, her right to the three parcels of land could have arisen only after her
mothers death. Since Zenaida predeceased her mother, Manolita, no such right came about and
the mantle of protection provided to Sato by the relationship no longer existed.

Sato counters that Article 332 makes no distinction that the relationship may not be invoked in case of
death of the spouse at the time the crime was allegedly committed. Thus, while the death of Zenaida
extinguished her marriage with Sato, it did not dissolve the son-in-law and mother-in-law relationship
between Sato and Zenaidas mother, Manolita.

For his part, the Solicitor General maintains that Sato is covered by the exemption from criminal liability
provided under Article 332. Nothing in the law and jurisprudence supports petitioners claim that Zenaidas
death dissolved the relationship by affinity between Sato and Manolita. As it is, the criminal case against
Sato created havoc among the members of the Carungcong and Sato families, a situation sought to be
particularly avoided by Article 332s provision exempting a family member committing theft, estafa or
malicious mischief from criminal liability and reducing his/her liability to the civil aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of the Revised Penal Code. In
particular, it calls for the determination of the following: (1) the effect of death on the relationship by affinity
created between a surviving spouse and the blood relatives of the deceased spouse and (2) the extent of
the coverage of Article 332.

Effect of Death on Relationship By Affinity as Absolutory Cause

Article 332 provides for an absolutory cause16in the crimes of theft, estafa (or swindling) and malicious
mischief. It limits the responsibility of the offender to civil liability and frees him from criminal liability by
virtue of his relationship to the offended party.

In connection with the relatives mentioned in the first paragraph, it has been held that included in the
exemptions are parents-in-law, stepparents and adopted children.17 By virtue thereof, no criminal liability is
incurred by the stepfather who commits malicious mischief against his stepson; 18 by the stepmother who
commits theft against her stepson;19 by the stepfather who steals something from his stepson;20 by the
grandson who steals from his grandfather;21 by the accused who swindles his sister-in-law living with
him;22 and by the son who steals a ring from his mother.23

Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is a relationship by
marriage or

a familial relation resulting from marriage.24 It is a fictive kinship, a fiction created by law in connection with
the institution of marriage and family relations.

If marriage gives rise to ones relationship by affinity to the blood relatives of ones spouse, does the
extinguishment of marriage by the death of the spouse dissolve the relationship by affinity?
Philippine jurisprudence has no previous encounter with the issue that confronts us in this case. That is
why the trial and appellate courts acknowledged the "dearth of jurisprudence and/or commentaries" on the
matter. In contrast, in the American legal system, there are two views on the subject. As one Filipino
author observed:

In case a marriage is terminated by the death of one of the spouses, there are conflicting views. There are
some who believe that relationship by affinity is not terminated whether there are children or not in the
marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26). However, the better view supported by most judicial
authorities in other jurisdictions is that, if the spouses have no living issues or children and one of the
spouses dies, the relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases
with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am Dec. 288).
On the other hand, the relationship by affinity is continued despite the death of one of the spouses where
there are living issues or children of the marriage "in whose veins the blood of the parties are commingled,
since the relationship of affinity was continued through the medium of the issue of the marriage" (Paddock
vs. Wells, 2 Barb. Ch. 331, 333).25

The first view (the terminated affinity view) holds that relationship by affinity terminates with the dissolution
of the marriage either by death or divorce which gave rise to the relationship of affinity between the
parties.26 Under this view, the relationship by affinity is simply coextensive and coexistent with the
marriage that produced it. Its duration is indispensably and necessarily determined by the marriage that
created it. Thus, it exists only for so long as the marriage subsists, such that the death of a spouse ipso
facto ends the relationship by affinity of the surviving spouse to the deceased spouses blood relatives.

The first view admits of an exception. The relationship by affinity continues even after the death of one
spouse when there is a surviving issue.27 The rationale is that the relationship is preserved because of the
living issue of the marriage in whose veins the blood of both parties is commingled.28

The second view (the continuing affinity view) maintains that relationship by affinity between the surviving
spouse and the kindred of the deceased spouse continues even after the death of the deceased spouse,
regardless of whether the marriage produced children or not.29 Under this view, the relationship by affinity
endures even after the dissolution of the marriage that produced it as a result of the death of one of the
parties to the said marriage. This view considers that, where statutes have indicated an intent to benefit
step-relatives or in-laws, the "tie of affinity" between these people and their relatives-by-marriage is not to
be regarded as terminated upon the death of one of the married parties. 30

After due consideration and evaluation of the relative merits of the two views, we hold that the second
view is more consistent with the language and spirit of Article 332(1) of the Revised Penal Code.

First, the terminated affinity view is generally applied in cases of jury disqualification and
incest.31 On the other hand, the continuing affinity view has been applied in the interpretation of
laws that intend to benefit step-relatives or in-laws. Since the purpose of the absolutory cause in
Article 332(1) is meant to be beneficial to relatives by affinity within the degree covered under the
said provision, the continuing affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same line" is
couched in general language. The legislative intent to make no distinction between the spouse of
ones living child and the surviving spouse of ones deceased child (in case of a son-in-law or
daughter-in-law with respect to his or her parents-in-law)32 can be drawn from Article 332(1) of the
Revised Penal Code without doing violence to its language.

Third, the Constitution declares that the protection and strengthening of the family as a basic
autonomous social institution are policies of the State and that it is the duty of the State to
strengthen the solidarity of the family.33 Congress has also affirmed as a State and national policy
that courts shall preserve the solidarity of the family.34 In this connection, the spirit of Article 332 is
to preserve family harmony and obviate scandal.35 The view that relationship by affinity is not
affected by the death of one of the parties to the marriage that created it is more in accord with
family solidarity and harmony.

Fourth, the fundamental principle in applying and in interpreting criminal laws is to resolve all
doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused.36 This is in
consonance with the constitutional guarantee that the accused shall be presumed innocent unless
and until his guilt is established beyond reasonable doubt.37
Intimately related to the in dubio pro reo principle is the rule of lenity.38 The rule applies when the court is
faced with two possible interpretations of a penal statute, one that is prejudicial to the accused and
another that is favorable to him. The rule calls for the adoption of an interpretation which is more lenient to
the accused.

Lenity becomes all the more appropriate when this case is viewed through the lens of the basic purpose
of Article 332 of the Revised Penal Code to preserve family harmony by providing an absolutory cause.
Since the goal of Article 332(1) is to benefit the accused, the Court should adopt an application or
interpretation that is more favorable to the accused. In this case, that interpretation is the continuing
affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the relationship by affinity
created between the surviving spouse and the blood relatives of the deceased spouse survives the death
of either party to the marriage which created the affinity. (The same principle applies to the justifying
circumstance of defense of ones relatives under Article 11[2] of the Revised Penal Code, the mitigating
circumstance of immediate vindication of grave offense committed against ones relatives under Article
13[5] of the same Code and the absolutory cause of relationship in favor of accessories under Article 20
also of the same Code.)

Scope of Article 332 of The Revised Penal Code

The absolutory cause under Article 332 of the Revised Penal Code only applies to the felonies of theft,
swindling and malicious mischief. Under the said provision, the State condones the criminal responsibility
of the offender in cases of theft, swindling and malicious mischief. As an act of grace, the State waives its
right to prosecute the offender for the said crimes but leaves the private offended party with the option to
hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies mentioned therein. The plain,
categorical and unmistakable language of the provision shows that it applies exclusively to the simple
crimes of theft, swindling and malicious mischief. It does not apply where any of the crimes mentioned
under Article 332 is complexed with another crime, such as theft through falsification or estafa through
falsification.39

The Information against Sato charges him with estafa. However, the real nature of the offense is
determined by the facts alleged in the Information, not by the designation of the offense. 40 What controls is
not the title of the Information or the designation of the offense but the actual facts recited in the
Information.41 In other words, it is the recital of facts of the commission of the offense, not the
nomenclature of the offense, that determines the crime being charged in the Information. 42 It is the
exclusive province of the court to say what the crime is or what it is named. 43 The determination by the
prosecutor who signs the Information of the crime committed is merely an opinion which is not binding on
the court.44

A reading of the facts alleged in the Information reveals that Sato is being charged not with simple estafa
but with the complex crime of estafa through falsification of public documents. In particular, the
Information states that Sato, by means of deceit, intentionally defrauded Manolita committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that time) and induced her to
sign and thumbmark the same;

(b) he made Manolita believe that the said document was in connection with her taxes when it was
in fact a special power of attorney (SPA) authorizing his minor daughter Wendy to sell, assign,
transfer or otherwise dispose of Manolitas properties in Tagaytay City;

(c) relying on Satos inducement and representation, Manolita signed and thumbmarked the SPA in
favor of Wendy Mitsuko Sato, daughter of Sato;

(d) using the document, he sold the properties to third parties but he neither delivered the proceeds
to Manolita nor accounted for the same and

(d) despite repeated demands, he failed and refused to deliver the proceeds, to the damage and
prejudice of the estate of Manolita.

The above averments in the Information show that the estafa was committed by attributing to Manolita
(who participated in the execution of the document) statements other than those in fact made by her.
Manolitas acts of signing the SPA and affixing her thumbmark to that document were the very expression
of her specific intention that something be done about her taxes. Her signature and thumbmark were the
affirmation of her statement on such intention as she only signed and thumbmarked the SPA (a document
which she could not have read) because of Satos representation that the document pertained to her
taxes. In signing and thumbmarking the document, Manolita showed that she believed and adopted the
representations of Sato as to what the document was all about, i.e., that it involved her taxes. Her
signature and thumbmark, therefore, served as her conformity to Satos proposal that she execute a
document to settle her taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted his daughter
Wendy a special power of attorney for the purpose of selling, assigning, transferring or otherwise
disposing of Manolitas Tagaytay properties when the fact was that Manolita signed and thumbmarked the
document presented by Sato in the belief that it pertained to her taxes. Indeed, the document itself, the
SPA, and everything that it contained were falsely attributed to Manolita when she was made to sign the
SPA.

Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent documents,
[Sato] made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale" and

(2) "once in possession of the proceeds of the sale of the above properties, said accused,
misapplied, misappropriated and converted the same to his own personal use and benefit" raise
the presumption that Sato, as the possessor of the falsified document and the one who benefited
therefrom, was the author thereof.

Furthermore, it should be noted that the prosecution moved for the amendment of the Information so as to
increase the amount of damages from P1,150,000 to P22,034,000. This was granted by the trial court and
was affirmed by the Court of Appeals on certiorari. This meant that the amended Information would now
state that, while the total amount of consideration stated in the deeds of absolute sale was
only P1,150,000, Sato actually received the total amount of P22,034,000 as proceeds of the sale of
Manolitas properties.45 This also meant that the deeds of sale (which were public documents) were also
falsified by making untruthful statements as to the amounts of consideration stated in the deeds.

Therefore, the allegations in the Information essentially charged a crime that was not simple estafa. Sato
resorted to falsification of public documents (particularly, the special power of attorney and the deeds of
sale) as a necessary means to commit the estafa.

Since the crime with which respondent was charged was not simple estafa but the complex crime of
estafa through falsification of public documents, Sato cannot avail himself of the absolutory cause
provided under Article 332 of the Revised Penal Code in his favor.

Effect of Absolutory Cause Under Article 332 on Criminal Liability For The Complex Crime of
Estafa Through Falsification of Public Documents

The question may be asked: if the accused may not be held criminally liable for simple estafa by virtue of
the absolutory cause under Article 332 of the Revised Penal Code, should he not be absolved also from
criminal liability for the complex crime of estafa through falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of estafa and falsification of public document
is required for a proper conviction for the complex crime of estafa through falsification of public document.
That is the ruling in Gonzaludo v. People.46 It means that the prosecution must establish that the accused
resorted to the falsification of a public document as a necessary means to commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the Revised Penal Code and
of the nature of a complex crime would negate exemption from criminal liability for the complex crime of
estafa through falsification of public documents, simply because the accused may not be held criminally
liable for simple estafa by virtue of the absolutory cause under Article 332.

The absolutory cause under Article 332 is meant to address specific crimes against property, namely, the
simple crimes of theft, swindling and malicious mischief. Thus, all other crimes, whether simple or
complex, are not affected by the absolutory cause provided by the said provision. To apply the absolutory
cause under Article 332 of the Revised Penal Code to one of the component crimes of a complex crime
for the purpose of negating the existence of that complex crime is to unduly expand the scope of Article
332. In other words, to apply Article 332 to the complex crime of estafa through falsification of public
document would be to mistakenly treat the crime of estafa as a separate simple crime, not as the
component crime that it is in that situation. It would wrongly consider the indictment as separate charges
of estafa and falsification of public document, not as a single charge for the single (complex) crime of
estafa through falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives its right to hold the offender criminally
liable for the simple crimes of theft, swindling and malicious mischief and considers the violation of the
juridical right to property committed by the offender against certain family members as a private matter
and therefore subject only to civil liability. The waiver does not apply when the violation of the right to
property is achieved through (and therefore inseparably intertwined with) a breach of the public interest in
the integrity and presumed authenticity of public documents. For, in the latter instance, what is
involved is no longer simply the property right of a family relation but a paramount public interest.

The purpose of Article 332 is to preserve family harmony and obviate scandal. 47 Thus, the action provided
under the said provision simply concerns the private relations of the parties as family members and is
limited to the civil aspect between the offender and the offended party. When estafa is committed through
falsification of a public document, however, the matter acquires a very serious public dimension and goes
beyond the respective rights and liabilities of family members among themselves. Effectively, when the
offender resorts to an act that breaches public interest in the integrity of public documents as a means to
violate the property rights of a family member, he is removed from the protective mantle of the absolutory
cause under Article 332.

In considering whether the accused is liable for the complex crime of estafa through falsification of public
documents, it would be wrong to consider the component crimes separately from each other. While there
may be two component crimes (estafa and falsification of documents), both felonies are animated by and
result from one and the same criminal intent for which there is only one criminal liability. 48 That is the
concept of a complex crime. In other words, while there are two crimes, they are treated only as one,
subject to a single criminal liability.

As opposed to a simple crime where only one juridical right or interest is violated (e.g., homicide which
violates the right to life, theft which violates the right to property), 49 a complex crime constitutes a violation
of diverse juridical rights or interests by means of diverse acts, each of which is a simple crime in
itself.50 Since only a single criminal intent underlies the diverse acts, however, the component crimes are
considered as elements of a single crime, the complex crime. This is the correct interpretation of a
complex crime as treated under Article 48 of the Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same
criminal intent results in two or more component crimes constituting a complex crime for which there is
only one criminal liability.51 (The complex crime of estafa through falsification of public document falls
under this category.) This is different from a material (or real) plurality of crimes where different criminal
intents result in two or more crimes, for each of which the accused incurs criminal liability.52 The latter
category is covered neither by the concept of complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus delictuorum or
concurso de delitos) gives rise to a single criminal liability and requires the imposition of a single penalty:

Although [a] complex crime quantitatively consists of two or more crimes, it is only one crime in law on
which a single penalty is imposed and the two or more crimes constituting the same are more
conveniently termed as component crimes.53 (emphasis supplied)

In [a] complex crime, although two or more crimes are actually committed, they constitute only one crime
in the eyes of the law as well as in the conscience of the offender. The offender has only one criminal
intent. Even in the case where an offense is a necessary means for committing the other, the evil intent of
the offender is only one.54

For this reason, while a conviction for estafa through falsification of public document requires that the
elements of both estafa and falsification exist, it does not mean that the criminal liability for estafa may be
determined and considered independently of that for falsification. The two crimes of estafa and
falsification of public documents are not separate crimes but component crimes of the single complex
crime of estafa and falsification of public documents.
Therefore, it would be incorrect to claim that, to be criminally liable for the complex crime of estafa through
falsification of public document, the liability for estafa should be considered separately from the liability for
falsification of public document. Such approach would disregard the nature of a complex crime and
contradict the letter and spirit of Article 48 of the Revised Penal Code. It would wrongly disregard the
distinction between formal plurality and material plurality, as it improperly treats the plurality of crimes in
the complex crime of estafa through falsification of public document as a mere material plurality where the
felonies are considered as separate crimes to be punished individually.

Falsification of Public Documents May Be a Necessary Means for Committing Estafa Even Under
Article 315 (3[a])

The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised Penal Code are as
follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;

(3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require that the
document be falsified for the consummation thereof, it does not mean that the falsification of the
document cannot be considered as a necessary means to commit the estafa under that provision.

The phrase "necessary means" does not connote indispensable means for if it did, then the offense as a
"necessary means" to commit another would be an indispensable element of the latter and would be an
ingredient thereof.55 In People v. Salvilla,56 the phrase "necessary means" merely signifies that one crime
is committed to facilitate and insure the commission of the other. 57 In this case, the crime of falsification of
public document, the SPA, was such a "necessary means" as it was resorted to by Sato to facilitate and
carry out more effectively his evil design to swindle his mother-in-law. In particular, he used the SPA to
sell the Tagaytay properties of Manolita to unsuspecting third persons.

When the offender commits in a public document any of the acts of falsification enumerated in Article 171
of the Revised Penal Code as a necessary means to commit another crime, like estafa, theft or
malversation, the two crimes form a complex crime under Article 48 of the same Code. 58 The falsification
of a public, official or commercial document may be a means of committing estafa because, before the
falsified document is actually utilized to defraud another, the crime of falsification has already been
consummated, damage or intent to cause damage not being an element of the crime of falsification of a
public, official or commercial document.59 In other words, the crime of falsification was committed prior to
the consummation of the crime of estafa.60 Actually utilizing the falsified public, official or commercial
document to defraud another is estafa.61 The damage to another is caused by the commission of estafa,
not by the falsification of the document.621avvphi 1

Applying the above principles to this case, the allegations in the Information show that the falsification of
public document was consummated when Sato presented a ready-made SPA to Manolita who signed the
same as a statement of her intention in connection with her taxes. While the falsification was
consummated upon the execution of the SPA, the consummation of the estafa occurred only when Sato
later utilized the SPA. He did so particularly when he had the properties sold and thereafter pocketed the
proceeds of the sale. Damage or prejudice to Manolita was caused not by the falsification of the SPA (as
no damage was yet caused to the property rights of Manolita at the time she was made to sign the
document) but by the subsequent use of the said document. That is why the falsification of the public
document was used to facilitate and ensure (that is, as a necessary means for) the commission of the
estafa.

The situation would have been different if Sato, using the same inducement, had made Manolita sign a
deed of sale of the properties either in his favor or in favor of third parties. In that case, the damage would
have been caused by, and at exactly the same time as, the execution of the document, not prior thereto.
Therefore, the crime committed would only have been the simple crime of estafa.63 On the other hand,
absent any inducement (such as if Manolita herself had been the one who asked that a document
pertaining to her taxes be prepared for her signature, but what was presented to her for her signature was
an SPA), the crime would have only been the simple crime of falsification. 64
WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007 and the resolution
dated January 23, 2008 of the Court of Appeals in CA-G.R. S.P. No. 95260 are REVERSED and SET
ASIDE. The case is remanded to the trial court which is directed to try the accused with dispatch for the
complex crime of estafa through falsification of public documents.

SO ORDERED.

G.R. No. 186080 August 14, 2009

JULIUS AMANQUITON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CORONA, J.:

Petitioner Julius Amanquiton was a purok leader of Barangay Western Bicutan, Taguig, Metro Manila. As
a purok leader and barangay tanod, he was responsible for the maintenance of cleanliness, peace and
order of the community.

At 10:45 p.m. on October 30, 2001, petitioner heard an explosion. He, together with two auxiliary tanod,
Dominador Amante1 and a certain Cabisudo, proceeded to Sambong Street where the explosion took
place. Thereafter, they saw complainant Leoselie John Baaga being chased by a certain Gil Gepulane.
Upon learning that Baaga was the one who threw the pillbox2 that caused the explosion, petitioner and
his companions also went after him.

On reaching Baagas house, petitioner, Cabisudo and Amante knocked on the door. When no one
answered, they decided to hide some distance away. After five minutes, Baaga came out of the house.
At this juncture, petitioner and his companions immediately apprehended him. Baaga's aunt, Marilyn
Alimpuyo, followed them to the barangay hall.

Baaga was later brought to the police station. On the way to the police station, Gepulane suddenly
appeared from nowhere and boxed Baaga in the face. This caused petitioner to order Gepulanes
apprehension along with Baaga. An incident report was made.3

During the investigation, petitioner learned Baaga had been previously mauled by a group made up of a
certain Raul, Boyet and Cris but failed to identify two others. The mauling was the result of gang trouble in
a certain residental compound in Taguig City. Baagas mauling was recorded in a barangay blotter which
read:

10-30-201
Time: 10-15 p.m.

RECORD purposes

Dumating dito sa Barangay Head Quarters si Dossen4 Baaga is Alimpuyo 16 years old student nakatira
sa 10 B Kalachuchi St. M.B.T. M.M.

Upang ireklamo yong sumapak sa akin sina Raul[,] Boyet [at] Cris at yong dalawang sumapak ay hindi ko
kilala. Nang yari ito kaninang 10:p.m. araw ng [M]artes taong kasalukuyan at yong labi ko pumutok at
yong kabilang mata ko ay namaga sa bandang kanan. Ang iyong kaliwang mukha at pati yong likod ko ay
may tama sa sapak.

Patunay dito ang aking lagda.

Dossen Banaga (sgd.)

Thereafter, an Information for violation of Section 10 (a), Article VI, RA 5 71606 in relation to Section 5 (j) of
R.A. 8369 was filed against petitioner, Amante and Gepulane. The Information read:
The undersigned 2nd Assistant Provincial Prosecutor accuses Julius Amanquiton, Dominador Amante
and Gil Gepulane of the crime of Violations of Section 10 (a) Article VI, Republic Act No. 7610 in relation
to Section 5 (j) of R.A. No. 8369 committed as follows:

That on the 30th day of October, 2001, in the Municipality of Taguig, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused in conspiracy with one another, armed
with nightstick, did then and there willfully, unlawfully and feloniously attack, assault and use personal
violence, a form of physical abuse, upon the person of Leoselie John A. [Baaga], seventeen (17) years
old, a minor, by then and there manhandling him and hitting him with their nightsticks, thus, constituting
other acts of child abuse, which is inimical or prejudicial to childs development, in violation of the above-
mentioned law.

CONTRARY TO LAW.

On arraignment, petitioner and Amante both pleaded not guilty. Gepulane remains at-large.

During the trial, the prosecution presented the following witnesses: Dr. Paulito Cruz, medico-legal officer
of the Taguig-Pateros District Hospital who attended to Baaga on October 30, 2001, Baaga himself,
Alimpuyo and Rachelle Baaga (complainants mother).

The defense presented the testimonies of petitioner, Amante and Briccio Cuyos, then deputy chief
barangay tanod of the same barangay. Cuyos testified that the blotter notation entered by Gepulane and
Baaga was signed in his presence and that they read the contents thereof before affixing their
signatures.

On May 10, 2005, the RTC found petitioner and Amante guilty beyond reasonable doubt of the crime
charged.7The dispositive portion of the RTC decision read:

WHEREFORE, in view of the foregoing, this Court finds the accused JULIUS AMANQUITON and
DOMINADOR AMANTE "GUILTY" beyond reasonable doubt for violation of Article VI Sec. 10 (a) of
Republic Act 7610 in relation to Section 3 (j) of Republic Act 8369, hereby sentences accused JULIUS
AMANQUITON and DOMINADOR AMANTE a straight penalty of thirty (30) days of Arresto Menor. 1avvphi 1

Both accused Julius Amanquiton and Dominador Amante are hereby directed to pay Leoselie John A.
Banaga the following:

1. Actual damages in the amount of P5,000.00;

2. Moral Damages in the amount of P 30,000.00; and

3. Exemplary damages in the amount of P 20,000.00.

The case against the accused Gil Gepulane is hereby sent to the ARCHIVES to be revived upon the
arrest of the accused. Let [a] warrant of arrest be issued against him.

SO ORDERED.

Amanquitons motion for reconsideration was denied.8

Petitioner filed a notice of appeal which was given due course. On August 28, 2008, the CA rendered a
decision9which affirmed the conviction but increased the penalty. The dispositive portion of the assailed
CA decision read:

WHEREFORE, in view of the foregoing the Decision appealed from is AFFIRMED with MODIFICATION.
The accused-appellant is sentenced to suffer the penalty of four (4) years, two (2) months and one (1) day
of prision correccional maximum up to eight (8) years of prision mayor minimum as maximum. In addition
to the damages already awarded, a fine of thirty thousand pesos (P30,000.00) is hereby solidarily
imposed the proceeds of which shall be administered as a cash fund by the DSWD.

IT IS SO ORDERED.

Petitioners motion for reconsideration was denied.10

Hence, this petition. Petitioner principally argues that the facts of the case as established did not
constitute a violation of Section 10 (a), Article VI of RA 7160 and definitely did not prove the guilt of
petitioner beyond reasonable doubt.

The Constitution itself provides that in all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved.11 An accused is entitled to an acquittal unless his guilt is shown beyond
reasonable doubt.12 It is the primordial duty of the prosecution to present its side with clarity and
persuasion, so that conviction becomes the only logical and inevitable conclusion, with moral certainty. 13

The necessity for proof beyond reasonable doubt was discussed in People v. Berroya:14

[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution, the State is arrayed against
the subject; it enters the contest with a prior inculpatory finding in its hands; with unlimited means of
command; with counsel usually of authority and capacity, who are regarded as public officers, as
therefore as speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast to
that of defendant engaged in a perturbed and distracting struggle for liberty if not for life. These
inequalities of position, the law strives to meet by the rule that there is to be no conviction where there is
reasonable doubt of guilt. However, proof beyond reasonable doubt requires only moral certainty or that
degree of proof which produces conviction in an unprejudiced mind.

The RTC and CA hinged their finding of petitioners guilt beyond reasonable doubt (of the crime of child
abuse) solely on the supposed positive identification by the complainant and his witness (Alimpuyo) of
petitioner and his co-accused as the perpetrators of the crime.

We note Baagas statement that, when he was apprehended by petitioner and Amante, there were many
people around.15 Yet, the prosecution presented only Baaga and his aunt, Alimpuyo, as witnesses to the
mauling incident itself. Where were the other people who could have testified, in an unbiased manner, on
the alleged mauling of Baaga by petitioner and Amante, as supposedly witnessed by Alimpuyo? 16 The
testimonies of the two other prosecution witnesses, Dr. Paulito Cruz and Rachelle Baaga, did not fortify
Baagas claim that petitioner mauled him, for the following reasons: Dr. Cruz merely attended to
Baagas injuries, while Rachelle testified that she saw Baaga only after the injuries have been inflicted
on him.

We note furthermore that, Baaga failed to controvert the validity of the barangay blotter he signed
regarding the mauling incident which happened prior to his apprehension by petitioner. Neither did he
ever deny the allegation that he figured in a prior battery by gang members.

All this raises serious doubt on whether Baagas injuries were really inflicted by petitioner, et al., to the
exclusion of other people. In fact, petitioner testified clearly that Gepulane, who had been harboring a
grudge against Baaga, came out of nowhere and punched Baaga while the latter was being brought to
the police station. Gepulane, not petitioner, could very well have caused Baaga's injuries.

Alimpuyo admitted that she did not see who actually caused the bloodied condition of Baagas face
because she had to first put down the baby she was then carrying when the melee started.17 More
importantly, Alimpuyo stated that she was told by Baaga that, while he was allegedly being held by the
neck by petitioner, others were hitting him. Alimpuyo was obviously testifying not on what she personally
saw but on what Baaga told her.

While we ordinarily do not interfere with the findings of the lower courts on the trustworthiness of
witnesses, when there appear in the records facts and circumstances of real weight which might have
been overlooked or misapprehended, this Court cannot shirk from its duty to sift fact from fiction.

We apply the pro reo principle and the equipoise rule in this case. Where the evidence on an issue of fact
is in question or there is doubt on which side the evidence weighs, the doubt should be resolved in favor
of the accused.18 If inculpatory facts and circumstances are capable of two or more explanations, one
consistent with the innocence of the accused and the other consistent with his guilt, then the evidence
does not fulfill the test of moral certainty and will not justify a conviction. 19

Time and again, we have held that:

Republic Act No. 7610 is a measure geared towards the implementation of a national comprehensive
program for the survival of the most vulnerable members of the population, the Filipino children, in
keeping with the Constitutional mandate under Article XV, Section 3, paragraph 2, that "The State shall
defend the right of the children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial
to their development." This piece of legislation supplies the inadequacies of existing laws treating crimes
committed against children, namely, the Revised Penal Code and Presidential Decree No. 603 or the
Child and Youth Welfare Code. As a statute that provides for a mechanism for strong deterrence against
the commission of child abuse and exploitation, the law has stiffer penalties for their commission, and a
means by which child traffickers could easily be prosecuted and penalized. Also, the definition of child
abuse is expanded to encompass not only those specific acts of child abuse under existing laws but
includes also "other acts of neglect, abuse, cruelty or exploitation and other conditions prejudicial to the
childs development."20

However, this noble statute should not be used as a sharp sword, ready to be brandished against an
accused even if there is a patent lack of proof to convict him of the crime. The right of an accused to
liberty is as important as a minors right not to be subjected to any form of abuse. Both are enshrined in
the Constitution. One need not be sacrificed for the other.

There is no dearth of law, rules and regulations protecting a child from any and all forms of abuse. While
unfortunately, incidents of maltreatment of children abound amidst social ills, care has to be likewise taken
that wayward youths should not be cuddled by a misapplication of the law. Society, through its laws,
should correct the deviant conduct of the youth rather than take the cudgels for them. Lest we regress to a
culture of juvenile delinquency and errant behavior, laws for the protection of children against abuse
should be applied only and strictly to actual abusers.

The objective of this seemingly catch-all provision on abuses against children will be best achieved if
parameters are set in the law itself, if only to prevent baseless accusations against innocent individuals.
Perhaps the time has come for Congress to review this matter and institute the safeguards necessary for
the attainment of its laudable ends.

We reiterate our ruling in People v. Mamalias:21

We emphasize that the great goal of our criminal law and procedure is not to send people to the gaol but
to do justice. The prosecutions job is to prove that the accused is guilty beyond reasonable doubt.
Conviction must be based on the strength of the prosecution and not on the weakness of the defense.
Thus, when the evidence of the prosecution is not enough to sustain a conviction, it must be rejected and
the accused absolved and released at once.

WHEREFORE, the petition is hereby GRANTED. The August 28, 2008 decision and January 15, 2009
resolution of Court of Appeals are reversed and SET ASIDE. Petitioner Julius Amanquiton is
hereby ACQUITTED of violation of Section 10 (a), Article VI of RA 7160.

SO ORDERED.

G.R. No. 175888 February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner,

vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.

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

G.R. No. 176051 February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H.

HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th
Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176222 February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,

represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and
THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary,
EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO
ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, Respondents.

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court
of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No.
97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He
was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on
November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith
Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code,
as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is
attached hereto and made an integral part hereof as Annex "A," committed as follows:

"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo
City and within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being then
members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating
together and mutually helping one another, with lewd design and by means of force, threat and
intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then
and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal
knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No.
WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe,
Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said
Suzette S. Nicolas, to her damage and prejudice.

CONTRARY TO LAW."1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United
States, entered into on February 10, 1998, the United States, at its request, was granted custody of
defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of
Makati for security reasons, the United States Government faithfully complied with its undertaking to bring
defendant Smith to the trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding
defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against
accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the
crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of
the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE
DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as
amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences
him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under
Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines
and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that
shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending
agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the
Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS
in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and
Local Government, and brought to a facility for detention under the control of the United States
government, provided for under new agreements between the Philippines and the United States, referred
to as the Romulo-Kenney Agreement of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of America
agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance
Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S.
Embassy in Manila.

(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo

Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United
States of America agree that, in accordance with the Visiting Forces Agreement signed between the two
nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati
City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a
room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel.
The Philippine police and jail authorities, under the direct supervision of the Philippine Department of
Interior and Local Government (DILG) will have access to the place of detention to ensure the United
States is in compliance with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become
moot.3

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted
their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of
all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This
was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal
of the previous ruling is sought on the ground that the issue is of primordial importance, involving the
sovereignty of the Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to the United States
military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to
the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later
added to its realm, except certain naval ports and/or military bases and facilities, which the United States
retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the
Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they
were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the
United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the
United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it
concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were
finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign military
bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign
sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and
conditions governing the presence of foreign armed forces in our territory were binding upon us but not
upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence
of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a treaty duly concurred in
by the Senate xxx and recognized as a treaty by the other contracting State."

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as attested and certified by the duly authorized representative
of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not
detract from its status as a binding international agreement or treaty recognized by the said State. For this
is a matter of internal United States law. Notice can be taken of the internationally known practice by the
United States of submitting to its Senate for advice and consent agreements that are policymaking in
nature, whereas those that carry out or further implement these policymaking agreements are merely
submitted to Congress, under the provisions of the so-called CaseZablocki Act, within sixty days from
ratification.6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of
August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire
to live in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the
Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in a common
bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last
war.

Desiring to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the illusion that
either of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and
security pending the development of a more comprehensive system of regional security in the Pacific
area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense
altering or diminishing any existing agreements or understandings between the Republic of the Philippines
and the United States of America.

Have agreed as follows:

Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international
disputes in which they may be involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international relation from the threat or use
of force in any manner inconsistent with the purposes of the United Nations.

Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly
by self-help and mutual aid will maintain and develop their individual and collective capacity to resist
armed attack.

Article III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be
dangerous to its own peace and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the
Security Council of the United Nations. Such measures shall be terminated when the Security Council has
taken the measures necessary to restore and maintain international peace and security.

Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an
armed attack on the metropolitan territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.

Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the United Nations or the responsibility of the United
Nations for the maintenance of international peace and security.

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of
America in accordance with their respective constitutional processes and will come into force when
instruments of ratification thereof have been exchanged by them at Manila.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice
has been given to the other party.

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

Done in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an
armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is
the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing
agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire
to strengthen international and regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes
their common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of
the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to
submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the
CaseZablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it
recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies
with the requirements of Art. XVIII, Sec. 25 of our Constitution. 10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual
Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both
the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting
from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the
Philippines, the following rules apply:

Article V

Criminal Jurisdiction

xxx

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense with which the
person has been charged. In extraordinary cases, the Philippine Government shall present its position to
the United States Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the United States
shall be relieved of any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that
providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines
(Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to
provide for a different rule of procedure for that accused, which also violates the equal protection clause of
the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of
a member of a foreign military armed forces allowed to enter our territory and all other accused. 11

The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from
local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign
military units around the world vary in terms and conditions, according to the situation of the parties
involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can
exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply except to the extent agreed upon to
subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting
foreign armed forces.

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. On the contrary, the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes
to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the
rule that governs is the following provision of the VFA:

Article V

Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippines and United States authorities. United States
personnel serving sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial and
detention after conviction, because they provided for a specific arrangement to cover detention. And this
specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be "by Philippine authorities." Therefore, the
Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of
the accused in the United States Embassy, are not in accord with the VFA itself because such detention is
not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the United
States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V,
Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas (
552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are
not automatically part of their domestic law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable. 1avv phi 1

On February 3, 2009, the Court issued a Resolution, thus:

"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R.
Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et
al. v. President Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme
Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty
stipulations that are not self-executory can only be enforced pursuant to legislation to carry them
into effect; and that, while treaties may comprise international commitments, they are not domestic
law unless Congress has enacted implementing statutes or the treaty itself conveys an intention
that it be "self-executory" and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or
because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US
Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no
part."

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties
intend its provisions to be enforceable, precisely because the Agreement is intended to carry out
obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has
been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL
Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be immediately implemented. The parties to
these present cases do not question the fact that the VFA has been registered under the Case-Zablocki
Act.1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The
Convention and the ICJ decision are not self-executing and are not registrable under the Case-Zablocki
Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20,
1952, as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2,
pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic courts
varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL

CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to
require the other contracting State to convert their system to achieve alignment and parity with ours. It
was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the enforcement of that obligation is left to
the normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 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. Thus, the US Supreme Court in Weinberger enforced the provisions of the
executive agreement granting preferential employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance
with Art. II, Sec. 2 of the US Constitution.

2. ExecutiveCongressional Agreements: These are joint agreements of the President and

Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. These are agreements entered into by the President. They are to
be submitted to Congress within sixty (60) days of ratification under the provisions of the Case-
Zablocki Act, after which they are recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been
given under it and this can only be done through implementing legislation. The VFA itself is another form
of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP
No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as
constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate agreement on detention facilities
under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall
be maintained until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending therein,
namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.

SO ORDERED.

G.R. No. 117472 June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEO ECHEGARAY y PILO, accused-appellant.
PER CURIAM:p

Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a deterrent
as far as the commission of heinous crimes is concerned and while the attendant details pertaining to the
execution of a death sentence remain as yet another burning issue, we are tasked with providing a clear-
cut resolution of whether or not the herein accused-appellant deserves to forfeit his place in human
society for the infliction of the primitive and bestial act of incestuous lust on his own blood.

Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime of
Rape, rendered after marathon hearing by the Regional Trial Court of Quezon City, Branch 104, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y PILO

guilty beyond reasonable doubt of the crime of RAPE as charged in the complaint,
aggravated by the fact that the same was commited by the accused who is the
father/stepfather of the complainant, he is hereby sentenced to suffer the penalty of
DEATH, as provided for under RA. No. 7659, to pay the complainant Rodessa Echegaray
the sum
of P50,000.00 as damages, plus all the accessory penalties provided by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs. 1

We note, however, that the charge had been formulated in this manner:

COMPLAINT

The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as
follows:

That on or about the month of April 1994, in Quezon City, Philippines, the above-named
accused, by means of force and intimidation did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the undersigned complainant, his daughter, a minor,
10 years of age, all against her will and without her consent, to her damage and prejudice.

CONTRARY TO LAW 2

Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio,
entered the plea of "not guilty."

These are the pertinent facts of the case as summarized by the Solicitor-General in his brief:

This is a case of rape by the father of his ten-year old daughter.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born on

September 11, 1983. Rodessa is the eldest of five siblings. She has three brothers aged 6,
5 and 2, respectively, and a 3-month old baby sister. Her parents are Rosalie and Leo
Echegaray, the latter being the accused-appellant himself. The victim lives with her family in
a small house located at No. 199 Fernandez St., Barangay San Antonio, San Francisco Del
Monte, Quezon City (pp. 5-9, Aug. 9, 1994, TSN).

Sometime in the afternoon of April 1994, while Rodessa was looking after her three brothers
in their house as her mother attended a gambling session in another place, she heard her
father, the accused-appellant in this case, order her brothers to go out of the house (pp. 10-
11, ibid). As soon as her brothers left, accused-appellant Leo Echegaray approached
Rodessa and suddenly dragged her inside the room (p. 12, ibid). Before she could question
the appellant, the latter immediately, removed her panty and made her lie on the floor (p.
13, ibid). Thereafter, appellant likewise removed his underwear and immediately placed
himself on top of Rodessa. Subsequently, appellant forcefully inserted his penis into
Rodessa's organ causing her to suffer intense pain (pp. 14-15, ibid). While appellant was
pumping on her, he even uttered. "Masarap ba, masarap ba?" and to which Rodessa
answered: "Tama na Papa, masakit" (p. 16, ibid). Rodessa's plea proved futile as appellant
continued with his act. After satisfying his bestial instinct, appellant threatened to kill her
mother if she would divulge what had happened. Scared that her mother would be killed by
 appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of appellant
because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The same sexual
assault happened up to the fifth time and this usually took place when her mother was out
of the house (p. 19, ibid.). However, after the fifth time, Rodessa decided to inform her
grandmother, Asuncion Rivera, who in turn told Rosalie, Radessa's mother. Rodessa and
her mother proceeded to the Barangay Captain where Rodessa confided the sexual
assaults she suffered. Thereafter, Rodessa was brought to the precinct where she executed
an affidavit (p. 21, ibid.). From there, she was accompanied to the Philippine National Police
Crime Laboratory for medical examination (p. 22, ibid.).

Rodessa testified that the said sexual assaults happened only during the time when her
mother was pregnant. Rodessa added that at first, her mother was on her side. However,
when appellant was detained, her mother kept on telling her. "Kawawa naman ang Tatay
mo, nakakulong" (pp. 39-40, ibid.).

When Rodessa was examined by the medico-legal officer in the person of Dra. Ma. Cristina
B. Preyna, 3 the complainant was described as physically on a non-virgin state, as evidenced by the
presence of laceration of the hymen of said complainant (TSN, Aug. 22, 1995, pp. 8-9). 4

On the other hand, the accused-appellant's brief presents a different story:

. . . the defense presented its first witness, Rosalie Echegaray. She asserted that the RAPE
charge against the accused was only the figment of her mothers dirty mind. That her
daughter's complaint was forced upon her by her grandma and the answers in the sworn
statement of Rodessa were coached. That the accusation of RAPE was motivated by
Rodessa's grandmother's greed over the lot situated at the Madrigal Estate-NHA Project,
Barangay San Antonio, San Francisco del Monte, Quezon City, which her grandmother's
paramour, Conrado Alfonso gave to the accused in order to persuade the latter to admit that
Rodessa executed an affidavit of desistance after it turned out that her complaint of
attempted homicide was substituted with the crime of RAPE at the instance of her mother.
That when her mother came to know about the affidavit of desistance, she placed her
granddaughter under the custody of the Barangay Captain. That her mother was never a
real mother to her.

She stated that her complaint against accused was for attempted homicide as her husband
poured alcohol on her body and attempted to burn her. She identified the certification issued
by the NHA and Tag No. 87-0393 (Exh. 2). That the Certification based on the Masterlist
(Exh. 3) indicates that the property is co-owned by accused and Conrado Alfonso. That
Rodessa is her daughter sired by Conrado Alfonso, the latter being the paramour of her
mother. That Conrado Alfonso waived his right and participation over the lot in favor of the
accused in consideration of the latter's accepting the fact that he is the father of Rodessa to
simulate the love triangle and to conceal the nauseating sex orgies from Conrado Alfonso's
real wife.

Accused testified in his behalf and stated that the grandmother of the complainant has a
very strong motive in implicating him to the crime of RAPE since she was interested to
become the sole owner of a property awarded to her live-in partner by the Madrigal Estate-
NHA Project. That he could not have committed the imputed crime because he considers
Rodessa as his own daughter. That he is a painter-contractor and on the date of the alleged
commission of the crime, he was painting the house of one Divina Ang of Barangay Vitalis,
Paraaque, Metro Manila (Exh. 4). The travel time between his work place to his residence
is three (3) hours considering the condition of traffic. That the painting contract is evidenced
by a document denominated "Contract of Services" duly accomplished (see submarkings of
Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11 years old
like Rodessa, the said female organ will be "mawawarak." That it is abnormal to report the
imputed commission of the crime to the grandmother of the victim.

Accused further stated that her (sic) mother-in-law trumped-up a charge of drug pushing
earlier and he pleaded guilty to a lesser offense of using drugs. The decretal portion of the
judgment of conviction ordering the accused to be confined at the Bicutan Rehabilitation
Center irked the grandmother of Rodessa because it was her wish that accused should be
meted the death penalty.
 Accused remain steadfast in his testimony perorating the strong motive of Rodessa's
grandmother in implicating him in this heinous crime because of her greed to become the
sole owner of that piece of property at the National Housing Authority-Madrigal Project,
situated at San Francisco del Monte, Quezon City, notwithstanding rigid cross-examination.
He asserted that the imputed offense is far from his mind considering that he treated
Rodessa as his own daughter. He categorically testified that he was in his painting job site
on the date and time of the alleged commission of the crime.

Mrs. Punzalan was presented as third defense witness. She said that she is the laundry
woman and part time baby sitter of the family of accused. That at one time, she saw
Rodessa reading sex books and the Bulgar newspaper. That while hanging washed clothes
on the vacant lot, she saw Rodessa masturbating by tinkering her private parts. The
masturbation took sometime.

This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth and last
witness for the defense. She stated that she tried hard to correct the flirting tendency of
Rodessa and that she scolded her when she saw Rodessa viewing an X-rated tape.
Rodessa according to her was fond of going with friends of ill-repute. That (sic) she
corroborated the testimony of Mrs. Punzalan by stating that she herself saw Rodessa
masturbating inside the room of her house. 5

In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court
dismissed the defense of alibi and lent credence to the straightforward testimony of the ten-year old victim
to whom no ill motive to testify falsely against accused-appellant can be attributed. The lower court
likewise regarded as inconsequential the defense of the accused-appellant that the extraordinary size of
his penis could not have insinuated itself into the victim's vagina and that the accused is not the real father
of the said victim.

The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower court's
verdict through the following assignment of errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER MOTIVE

OF PRIVATE COMPLAINANT'S GRANDMOTHER? THAT PRECIPITATED
THE FILING OF THE CHARGE OF RAPE, HENCE IT ERRED IN HOLDING
ACCUSED GUILTY AS CHARGED.

2. THE COURT BELOW OVERLOOKED THE FACT THAT THE HEALED

LACERATIONS AT 3 AND 7 O'CLOCK COULD NOT HAVE BEEN DUE TO
THE PUMPING OF THE PENIS OF ACCUSED TO THE VAGINA OF
PRIVATE COMPLAINANT, HENCE IT ERRED IN HOLDING THAT
ACCUSED COMMITTED THE CRIME CHARGED, NOTWITHSTANDING
VEHEMENT DENIAL.

3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE OF ALIBI

THAT ACCUSED WAS IN PARAAQUE ON THE DATE AND TIME OF THE
IMPUTED CRIME HENCE, IT ERRED IN HOLDING THAT ALIBI IS NOT
SUSTAINABLE IN THE CASE AT BAR. 6

Considering that a rape charge, in the light of the reimposition of the death penalty, requires a thorough
and judicious examination of the circumstances relating thereto, this Court remains guided by the
following principles in evaluating evidence in cases of this nature: (a) An accusation for rape can be made
with facility; it is difficult to prove but more difficult for the accused though innocent to disprove; (b) In view
of the intrinsic nature of the crime of rape where only two persons are involved, the testimony of the
complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must
stand and fall on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense. 7

Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of justice
in favor of the accused-appellant notwithstanding that he cries foul insisting that the rape charge was
merely concocted and strongly motivated by greed over a certain lot situated at the NHA-Madrigal Estate
Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon City. The accused-appellant
theorizes that prosecution witness Asuncion Rivera, the maternal grandmother of the victim Rodessa,
concocted the charge of rape so that, in the event that the accused-appellant shall be meted out a death
sentence, title to the lot will be consolidated in her favor. Indeed, the lot in question is co-owned by the
accused-appellant and Conrado Alfonso, the live-in partner of Asuncion Rivera, according to the records
of the National Housing Authority (Exh. "3"). The accused-appellant would want us to believe that the rape
charge was fabricated by Asuncion Rivera in order to eliminate the accused-appellant from being a co-
owner. So, the live-in partners would have the property for their own. 8

We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her 10-
year old granddaughter to file a rape case against her own father simply on account of her alleged interest
over the disputed lot. 9

It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she has no
motive to testify against the accused. 10

We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the trial
court found convincing enough and unrebutted by the defense. The trial court not surprisingly noted that
Rodessa's narration in detail of her father's monstrous acts had made her cry. 11 Once again, we rule that:

. . . The testimony of the victim who was only 12 years old at the time of the rape as to the
circumstances of the rape must be given weight, for testimony of young and immature rape
victims are credible (People v. Guibao, 217 SCRA 64 [1993]). No woman especially one of
tender age, practically only a girl, would concoct a story of defloration, allow an examination
of her private parts and thereafter expose herself to a public trial, if she were not motivated
solely by the desire to have the culprit apprehended and punished (People v.
Guibao, supra). 12

The accused-appellant points out certain inconsistencies in the testimonies of the prosecution witnesses
in his attempt to bolster his claim that the rape accusation against him is malicious and baseless. Firstly,
Rodessa's testimony that the accused-appellant was already naked when he dragged her inside the room
is inconsistent with her subsequent testimony that the said accused-appellant was still wearing short
pants when she was dragged inside the room. Secondly, Rodessa's sworn statement before the police
investigator which indicated that, while the accused was executing pumping acts, he uttered the words
"Masarap ba?", differ from her testimony in court wherein she related that, when the accused took out his
penis from her vagina, the accused said "Masarap, tapos na." Thirdly, the victim's grandmother, Asuncion
Rivera, recounted in her sworn statement that it was the accused who went to see her to apprise her of
the rape committed on her granddaughter. However, in her testimony in court , Asuncion Rivera claimed
that she was the one who invited the accused-appellant to see her in her house so as to tell her a
secret. 13 These alleged discrepancies merely pertain to minor details which in no way pose serious doubt as to the
credibility of the prosecution witnesses. Whether or not the accused was naked when he dragged Rodessa inside the
room where he sexually assaulted her bears no significant effect on Rodessa's testimony that she was actually raped by
the accused-appellant. Moreover, a conflicting account of whatever words were uttered by the accused-appellant after he
forcefully inserted his penis into Rodessa's private organ against her will cannot impair the prosecution's evidence as a
whole. A determination of which version earmarks the truth as to how the victim's grandmother learned about the rape is
inconsequential to the judgment of conviction.

As we have pronounced in the case of People v. Jaymalin: 14

This Court has stated time and again that minor inconsistencies in the narration of the
witness do not detract from its essential credibility as long as it is on the whole coherent and
intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth
and has not been rehearsed as it is not to he expected that he will be able to remember
every single detail of an incident with perfect or total recall.

After due deliberation, this Court finds that the trial judge's assessment of the credibility of the prosecution
witnesses deserves our utmost respect in the absence of arbitrariness.

With respect to the second assigned error, the records of the instant case are bereft of clear and concrete
proof of the accused-appellant's claim as to the size of his penis and that if that be the fact, it could not
have merely caused shallow healed lacerations at 3:00 and 7:00 o'clock. 15 In his testimony, the accused-
appellant stated that he could not have raped Rodessa because of
the size of his penis which could have ruptured her vagina had he actually done so. 16 This Court gives no probative value
on the accused-appellant's self-serving statement in the light of our ruling in the case of People v. Melivo, supra, 17 that:

The vaginal wall and the hymenal membrane are elastic organs capable of varying degrees
of distensibility. The degree of distensibility of the female reproductive organ is normally
limited only by the character and size of the pelvic inlet, other factors being minor. The
female reprodructive canal being capable of allowing passage of a regular fetus, there
 ought to be no difficulty allowing the entry of objects of much lesser size, including the male
reproductive organ, which even in its largest dimensions, would still be considerably smaller
than the full-term fetus.

xxx xxx xxx

In the case at bench, the presence of healed lacerations in various parts of he vaginal wall,
though not as extensive as appellant might have expected them to be, indicate traumatic
injury to the area within the period when the incidents were supposed to have occurred. (At
pp. 13-14, emphasis supplied)

In rape cases, a broken hymen is not an essential element thereof. 18

A mere knocking at the doors of the
pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina
is not required to sustain a conviction. 19 In the case, Dr. Freyra, the medico-legal examiner, categorically testified that the
healed lacerations of Rodessa on her vagina were consistent with the date of the commission of the rape as narrated by
the victim to have taken place in April, 1994. 20

Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously argues
that the Contract of Services (Exhibit 4) offered as evidence in support of the accused-appellant's defense
of alibi need not be corroborated because there is no law expressly requiring so. 21 In view of our finding that
the prosecution witnesses have no motive to falsely testify against the accused-appellant, the defense of alibi, in this
case, uncorroborated by other witnesses, should be completely disregarded. 22 More importantly, the defense of alibi
which is inherently weak becomes even weaker in the face of positive identification of the accused-appellant as
perpetrator of the crime of rape by his victim, Rodessa. 23

The Contract of Services whereby the accused-appellant obligated himself to do some painting job at the
house of one Divina Ang in Paraaque, Metro Manila, within 25 days from April 4, 1994, is not proof of the
whereabouts of the accused-appellant at the time of the commission of the offense.

The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint, dated
July 14, 1994. The gravamen of the said offense, as stated in paragraph 3, Article 335 of the Revised
Penal Code, is the carnal knowledge of a woman below twelve years old. 24 Rodessa positively identified his
father accused-appellant, as the culprit of Statutory Rape. Her account of how the accused-appellant succeeded in
consummating his grievous and odious sexual assault on her is free from any substantial self-contradiction. It is highly
inconceivable that it is rehearsed and fabricated upon instructions from Rodessa's maternal grandmother Asuncion Rivera
as asserted by the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court, more
than two decades ago, are relevant and worth reiterating, thus:

. . . it is manifest in the decisions of this Court that where the offended parties are young
and immature girls like the victim in this case, (Cited cases omitted) there is marked
receptivity on its, part to tend credence to their version of what transpired. It is not to be
wondered at. The state, as parens patria, is under the obligation to minimize the risk of
harm to those, who, because of their minority, are as yet unable to take care of themselves
fully. Those of tender years deserve its utmost protection. Moreover, the injury in cases of
rape is not inflicted on the unfortunate victim alone. The consternation it causes her family
must also be taken into account It may reflect a failure to abide by the announced concern
in the fundamental law for such institution There is all the more reason then for the rigorous
application of the penal law with its severe penalty for this offense, whenever warranted. It
has been aptly remarked that with the advance in civilization, the disruption in public peace
and order it represents defies explanation, much more so in view of what currently appears
to be a tendency for sexual permissiveness. Where the prospects of relationship based on
consent are hardly minimal, self-restraint should even be more marked. 25

Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of the
Revised Penal Code was amended, to wit:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

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

xxx xxx xxx

(Emphasis supplied)
Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the trial
court by declaring that he is neither a father, stepfather or grandfather of Rodessa although he was a
confirmed lover of Rodessa's mother. 26 On direct examination, he admitted that before the charge of rape was riled
against him, he had treated Rodessa as his real daughter and had provided for her food, clothing, shelter and
education. 27 The Court notes that Rodessa uses the surname of the accused-appellant, not Rivera (her mother's maiden
name) nor Alfonso (her grandmother's live-in partner). Moreover, Rodessa's mother stated during the cross-examination
that she, the accused-appellant, and her five children, including Rodessa, had been residing in one house only. 28 At any
rate, even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot save him from the abyss
where perpetrators of heinous crimes ought to be, as mandated by law. Considering that the accused-appellant is a
confirmed lover of Rodessa's mother, 29 he falls squarely within the aforequoted portion of the Death Penalty Law under
the term "common-law spouse of the parent of the victim."

The fact that the ten-year old Rodessa referred to the accused-appellant as "Papa" is reason enough to
conclude that accused-appellant is either the father or stepfather of Rodessa. Thus, the act of sexual
assault perpetrated by the accused on his young victim has become all the more repulsive and perverse.
The victim's tender age and the accused-appellant's moral ascendancy and influence over her are factors
which forced Rodessa to succumb to the accused's selfish and bestial craving. The law has made it
inevitable under the circumstances of this case that the accused-appellant face the supreme penalty of
death. WHEREFORE, we AFFIRM the decision of the Regional Trial Court of Quezon City, Branch 104.

SO ORDERED.

G.R. No. 183891 August 3, 2010

ROMARICO J. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO MORALES, J.:

For failure to remit the Social Security System (SSS) premium contributions of employees of the Summa
Alta Tierra Industries, Inc. (SATII) of which he was president, Romarico J. Mendoza (petitioner) was
convicted of violation of Section 22(a) and (d) vis--vis Section 28 of R.A. No. 8282 or the Social Security
Act of 1997 by the Regional Trial Court of Iligan City, Branch 4. His conviction was affirmed by the Court
of Appeals.1

The Information against petitioner2 reads:

xxxx

That sometime during the month of August 1998 to July 1999, in the City of Iligan, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, being then the proprietor of Summa Alta
Tierra Industries, Inc., duly registered employer with the Social Security System (SSS), did then and there
willfully, unlawfully and feloniously fail and/or refuse to remit the SSS premium contributions in favor of its
employees amounting to P421, 151.09 to the prejudice of his employees.

Contrary to and in violation of Sec. 22(a) and (d) in relation to Sec. 28 of Republic Act No. 8282, as
amended (emphasis and underscoring supplied)

The monthly premium contributions of SATII employees to SSS which petitioner admittedly failed to remit
covered the period August 1998 to July 19993 amounting to P421,151.09 inclusive of penalties.4

After petitioner was advised by the SSS to pay the above-said amount, he proposed to settle it over a
period of 18 months5 which proposal the SSS approved by Memorandum of September 12, 2000.6

Despite the grant of petitioners request for several extensions of time to settle the delinquency in
installments,7petitioner failed, hence, his indictment.
Petitioner sought to exculpate himself by explaining that during the questioned period, SATII shut down
due to the general decline in the economy.8

Finding for the prosecution, the trial court, as reflected above, convicted petitioner, disposing as follows:

WHEREFORE, premises considered, the Court finds Romarico J. Mendoza, guilty as charged beyond
reasonable doubt. Accordingly, he is hereby meted the penalty of 6 years and 1 day to 8 years.

The accused is further ordered to pay the Social Security System the unpaid premium contributions of his
employees including the penalties in the sum of P421, 151.09.

SO ORDERED. 9 (emphasis supplied)

And as also reflected above, the Court of Appeals affirmed the trial courts decision, by Decision of July
March 5, 2007,10 it noting that the Social Security Act is a special law, hence, lack of criminal intent or
good faith is not a defense in the commission of the proscribed act.

The appellate court brushed aside petitioners claim that he is merely a conduit of SATII and, therefore,
should not be held personally liable for its liabilities. It held that petitioner, as President, Chairman and
Chief Executive Officer of SATII, is the managing head who is liable for the act or omission penalized
under Section 28(f) of the Social Security Act.

Petitioner contended in his motion for reconsideration that Section 28(f) of the Act which reads:

(f) If the act or omission penalized by this Act be committed by an association, partnership, corporation or
any other institution, its managing head, directors or partners shall be liable for the penalties provided in
this Act for the offense.

should be interpreted as follows:

If an association, the one liable is the managing head; if a partnership, the ones liable are the partners;
and if a corporation, the ones liable are the directors. (underscoring supplied)

The appellate court denied petitioners motion, hence, the present petition for review on certiorari.

Petitioner maintains, inter alia, that the managing head or president or general manager of a corporation
is not among those specifically mentioned as liable in the above-quoted Section 28(f). And he calls
attention to an alleged congenital infirmity in the Information11 in that he was charged as "proprietor" and
not as director of SATII.

Further, petitioner claims that the lower courts erred in penalizing him with six years and one day to eight
years of imprisonment considering the mitigating and alternative circumstances present, namely: his being
merely vicariously liable; his good faith in failing to remit the contributions; his payment of the premium
contributions of SATII out of his personal funds; and his being economically useful, given his academic
credentials, he having graduated from a prime university in Manila and being a reputable businessman.

The petition lacks merit.

Remittance of contribution to the SSS under Section 22(a) of the Social Security Act is mandatory. United
Christian Missionary Society v. Social Security Commission12 explicitly explains:

No discretion or alternative is granted respondent Commission in the enforcement of the laws mandate
that the employer who fails to comply with his legal obligation to remit the premiums to the System
within the prescribed period shall pay a penalty of three 3% per month. The prescribed penalty is
evidently of a punitive character, provided by the legislature to assure that employers do not take
lightly the States exercise of the police power in the implementation of the Republics declared policy
to develop, establish gradually and perfect a social security system which shall be suitable to the needs
of the people throughout the Philippines and (to) provide protection to employers against the hazards of
disability, sickness, old age and death.[Section 2, Social Security Act; Roman Catholic Archbishop v.
Social Security Commission, 1 SCRA 10, January 20, 1961] In this concept, good faith or bad faith is
rendered irrelevant, since the law makes no distinction between an employer who professes good
reasons for delaying the remittance of premiums and another who deliberately disregards the legal duty
imposed upon him to make such remittance. From the moment the remittance of premiums due is
delayed, the penalty immediately attaches to the delayed premium payments by force of
law. (emphasis and underscoring supplied)

Failure to comply with the law being malum prohibitum, intent to commit it or good faith is immaterial. 13

The provision of the law being clear and unambiguous, petitioners interpretation that a "proprietor," as he
was designated in the Information, is not among those specifically mentioned under Sec. 28(f) as liable,
does not lie. For the word connotes management, control and power over a business entity. 14 There is
thus, as Garcia v. Social Security Commission Legal and Collection enjoins,15

. . . no need to resort to statutory construction [for] Section 28(f) of the Social Security Law imposes
penalty on:

(1) the managing head;

(2) directors; or

(3) partners, for offenses committed by a juridical person. (emphasis supplied)

The term "managing head" in Section 28(f) is used, in its broadest connotation, not to any specific
organizational or managerial nomenclature. To heed petitioners reasoning would allow unscrupulous
businessmen to conveniently escape liability by the creative adoption of managerial titles. 1avvph!1

While the Court affirms the appellate courts decision, there is a need to modify the penalty imposed on
petitioner. The appellate court affirmed the trial courts imposition of penalty on the basis of Sec. 28(e) of
the Social Security Act which reads:

Sec. 28. Penal Clause. (e) Whoever fails or refuses to comply with the provisions of this Act or with the
rules and regulations promulgated by the Commission, shall be punished by a fine of not less than Five
thousand pesos (P5,0000.00) nor more than Twenty thousand pesos (P5,000.00) nor more than Twenty
thousand pesos (P20,000.00), or imprisonment for not less than six (6) years and one (1) day nor more
than twelve (12) years or both, at the discretion of the court. x x x

The proper penalty for this specific offense committed by petitioner is, however, provided in Section 28
(h) of the same Act which reads:

Sec. 28. Penal Clause (h) Any employer who after deducting the monthly contributions or loan
amortizations from his employees compensation, fails to remit the said deductions to the SSS within thirty
(30) days from the date they became due shall be presumed to have misappropriated such contributions
or loan amortizations and shall suffer the penalties provided in Article Three hundred fifteen [Art. 315] of
the Revised Penal Code. (emphasis and underscoring supplied)

Article 315 of the Revised Penal Code provides that the penalty in this case should be

x x x prision correccional in its maximum period to prision mayor in its minimum period, if the amount of
the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for
each additional 10,000 pesos; but the penalty which may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the
case may be;

x x x x.

Since the above-quoted Sec. 28 (h) of the Social Security Act (a special law) adopted the penalty from the
Revised Penal Code, the Indeterminate Sentence Law also finds application. 16

Taking into account the misappropriated P421,151.09 and the Courts discourse in People v. Gabres17 on
the proper imposition of the indeterminate penalty in Article 315, the appropriate penalty in this case
should range from four (4) years and two (2) months of prision correccional, as minimum, to twenty (20)
years of reclusion temporal, as maximum.

WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 27630 are
AFFIRMED with MODIFICATION. Petitioner is sentenced to an indeterminate prison term of four (4) years
and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as
maximum.

Costs against petitioner.

SO ORDERED.

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that
he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to
serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but
surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for
joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security, then
headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the
other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the
move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days later
or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of
the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also demanded
that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also
joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However,
petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II
also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin
Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3
of all the members of the House of Representatives to the Senate. This caused political convulsions in
both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President.
Speaker Villar was unseated by Representative Fuentebella. 12 On November 20, the Senate formally
opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as
prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan
Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of
private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon
Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former
Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its
high and low points were the constant conversational piece of the chattering classes. The dramatic point
of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI
Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500 million investment agreement with their bank on February
4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that
the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges
ruled against the opening of the second envelope which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets
of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment
proceedings until the House of Representatives shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line
of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala
Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance.
Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted
more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed
Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m.,
Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and
hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing
our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major
service commanders gave a similar stunning announcement.24Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts. 25 Rallies for
the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial
second envelope.26 There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful
and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary.
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser
Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential
Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice
Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-
Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the
following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President
of the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President,
I do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national spirit
of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter: 31

"Sir:
 By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of law
and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy
was transmitted to Senate President Pimentel on the same day although it was received only at 9:00
p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers
the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on
the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court,
dated January 20, 2001, which request was treated as an administrative matter, the court Resolve
unanimously to confirm the authority given by the twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. 1w phi 1.nt

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition of respondent Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps,
Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of
respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White
House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of
the Republic of the Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later, she
also signed into law the Political Advertising ban and Fair Election Practices Act. 41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of
Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted
"yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent
Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were
absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later. 46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she
voted against the closure of the impeachment court on the grounds that the Senate had failed to decide
on the impeachment case and that the resolution left open the question of whether Estrada was still
qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up
from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted
President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55%
in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social
classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's
or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and
corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by
the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong,
et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case
No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus
and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to
the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754,
1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the
term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be
the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos.
146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within
a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the
consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on
or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing,
Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag
that they have "compromised themselves by indicating that they have thrown their weight on one side" but
nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to
file their memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738,
the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the merits of
the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman
from resolving or deciding the criminal cases pending investigation in his office against petitioner,
Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the
respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada
seven (7) days after the hearing held on February 15, 2001, which action will make the cases at
bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence,
are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases
at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended
the presidency through people power; that she has already taken her oath as the 14th President of the
Republic; that she has exercised the powers of the presidency and that she has been recognized by
foreign governments. They submit that these realities on ground constitute the political thicket, which the
Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In the
United States, the most authoritative guidelines to determine whether a question is political were spelled
out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack
of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility
of a court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious pronouncements by
various departments on question. Unless one of these formulations is inextricable from the case at
bar, there should be no dismissal for non justiciability on the ground of a political question's
presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed
the reach of the political question doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally demandable and enforceable but also
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 government. 59 Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine what it
can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not just grant the Court power
of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution
trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which
empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at
bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited
cases, we held that the government of former President Aquino was the result of a successful
revolution by the sovereign people, albeit a peaceful one. No less than the Freedom
Constitution63 declared that the Aquino government was installed through a direct exercise of the power
of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is
familiar learning that the legitimacy of a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent Arroyo is not revolutionary in character. The
oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. 64 In her oath, she
categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she
is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition
the government for redress of grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject
of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of
the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call
for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine
quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898,
provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or
opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of
association for purposes of human life and which are not contrary to public means; and (3) of the right to
send petitions to the authorities, individually or collectively." These fundamental rights were preserved
when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no
law shall be passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of grievances." The guaranty was carried
over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These
rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident.
The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring
individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth;
third, it is essential to provide for participation in decision-making by all members of society; and fourth, it
is a method of achieving a more adaptable and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of
speech and of assembly provides a framework in which the "conflict necessary to the progress of
a society can take place without destroying the society." 70 In Hague v. Committee for Industrial
Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the
Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of
assembly is the substitution of the expression of opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court
similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign
people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1
of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section 1176 of
Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also
involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the province
and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question.
Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case
and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of the President was not vacant when respondent
Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President,
the Vice President shall become the President to serve the unexpired term. In case of death,
permanent disability, removal from office, or resignation of both the President and Vice President,
the President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice President shall have been
elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a
high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be
an intent to resign and the intent must be coupled by acts of relinquishment. 78 The validity of a
resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can
be express. It can be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions
before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior
facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In express
speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives.
Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in
tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and
Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open
the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was
over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the
morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA,
hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed,
seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later
or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not
be a candidate. The proposal for a snap election for president in May where he would not be a
candidate is an indicium that petitioner had intended to give up the presidency even at that time.
At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their
pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president.
According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option
of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was
falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of
making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be
allowed to go abroad with enough funds to support him and his family. 83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would never
leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace." 85 This is proof that petitioner had reconciled
himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he
could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed.
Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his
family, and (3) the agreement to open the second envelope to vindicate the name of the
petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed
the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the
petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses
that he just wants the five-day period promised by Reyes, as well as to open the second envelope
to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

 The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too
painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when
he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona.
For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various positions
and offices of the government shall start their orientation activities in coordination with the
incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the
Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of
the President and his family as approved by the national military and police authority (Vice
President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person
and property throughout their natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from government and the private sector
throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the
Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
 '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact.
The only unsettled points at that time were the measures to be undertaken by the parties during and after
the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the
party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful
events, viz;90

"xxx

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I
hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the presidency
of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government positions
shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the
national military and police authority Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the impeachment
trial, the contents of which shall be offered as proof that the subject savings account does not
belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about
the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General
Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the police and military have already withdrawn their
support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement before
leaving Malacaang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While along with many other legal minds
of our country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and
order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized
he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that
he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4) he assured that he will not shirk from any future
challenge that may come ahead in the same service of our country. Petitioner's reference is to a future
challenge after occupying the office of the president which he has given up; and (5) he called on his
supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.
Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the
presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now
in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer
to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law
and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did
the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes
the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during
the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his press release that he was
temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for
the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation
of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If,
however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There is another reason why this
Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number
III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No.
3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the
Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to
voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as
section 15:

"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on bribery.
 The separation or cessation of a public official form office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section
15 above became section 13 under the new bill, but the deliberations on this particular provision mainly
focused on the immunity of the President, which was one of the reasons for the veto of the original bill.
There was hardly any debate on the prohibition against the resignation or retirement of a public official
with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought
to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a
protective shield to stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal
Code. To be sure, no person can be compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or
administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from
suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction
to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it
contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section
12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the process already broke down when a
majority of the senator-judges voted against the opening of the second envelope, the public and private
prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and
the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against
petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim
is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress
has the ultimate authority under the Constitution to determine whether the President is incapable of
performing his functions in the manner provided for in section 11 of article VII."95 This contention is
the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an
Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written declaration to the contrary, such powers
and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and
to the Speaker of the House of Representatives their written declaration that the President is
 unable to discharge the powers and duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet
transmit within five days to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules and without
need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session,
within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses,
voting separately, that the President is unable to discharge the powers and duties of his office, the
Vice-President shall act as President; otherwise, the President shall continue exercising the
powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001
House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO

THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief
Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an institution
and that of the individual members thereof of fealty to the supreme will of the people, the House of
Representatives must ensure to the people a stable, continuing government and therefore must
remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the
whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing,
for the House of Representatives to extend its support and collaboration to the administration of
 Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-
building, the national interest demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend
its congratulations and to express its support for her administration as a partner in the attainment
of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION

OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of
both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the
Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
of Justice, Senator of the Philippines qualities which merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the
Senate signed the following:
 "RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity
of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION

OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of
both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the
Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence
and courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
of Justice, Senator of the land - which qualities merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which
states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.
 Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written
approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in
the Senate and calling on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any
sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise
that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected
petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Taada v. Cuenco,102 we hold that this Court
cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has
been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs.
Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards
for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power
and duties of the presidency. The question is political in nature and addressed solely to Congress
by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing
the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim
that he is a President on leave on the ground that he is merely unable to govern temporarily. That
claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure,
president made by a co-equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and
C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the
guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures. This does not mean, either that a
person injured by the executive authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the governors-general, like the
judges if the courts and the members of the Legislature, may not be personally mulcted in civil
damages for the consequences of an act executed in the performance of his official duties. The
judiciary has full power to, and will, when the mater is properly presented to it and the occasion
justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived his liberty or his property by such act.
This remedy is assured to every person, however humble or of whatever country, when his
personal or property rights have been invaded, even by the highest authority of the state. The thing
which the judiciary can not do is mulct the Governor-General personally in damages which result
from the performance of his official duty, any more than it can a member of the Philippine
Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued
at all in relation to acts which he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that portion which touched the liability of
judges and drew an analogy between such liability and that of the Governor-General, that the latter
is liable when he acts in a case so plainly outside of his power and authority that he can not be
said to have exercised discretion in determining whether or not he had the right to act. What is held
here is that he will be protected from personal liability for damages not only when he acts within his
authority, but also when he is without authority, provided he actually used discretion and
judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In
other words, in determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he s not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its determination. In such case, be acts, not as
Governor-General but as a private individual, and as such must answer for the consequences of
his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials
of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust
as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.
Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie
for official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of
this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended it to shield the President not only form civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it
 would cover even acts of the President outside the scope of official duties. And third, we
broadened its coverage so as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of the President. It can be said
that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J.
Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee members not agree to a restoration of at least the
first sentence that the President shall be immune from suit during his tenure, considering that if we
do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as
the President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence
that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that
he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the
events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be
impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a
better situation than a non-sitting President who has not been subjected to impeachment proceedings and
yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission
make it clear that when impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him, viz: 110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President,
for example, and the President resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua
non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment
proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos
for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer
who acts illegally is not acting as such but stands in the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In
the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted
co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings. The claim was rejected by the US
Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair administration of criminal justice."
In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the
president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion
to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity
from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 118 It
declared as a state policy that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency act with patriotism and justice, and lead modest lives." 120 It set the rule that 'the right
of the State to recover properties unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with
enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission appears to be
illegal, unjust improper or inefficient."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation
of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat. 126 The American approach is
different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e.,
substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the
case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just
like all high profile and high stake criminal trials. Then and now, we rule that the right of an
accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting
enhances accused's right to a fair trial for, as well pointed out, a responsible press has always
been regarded as the criminal field xxx. The press does not simply publish information about trials
but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that
the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that
the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is
impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system brings news as they
happen straight to our breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is
not that of a hermit who is out of touch with the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our
judges are learned in the law and trained to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere exposure to publications and publicity stunts does
not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not show that the trial judge developed actual bias
against appellants as a consequence of the extensive media coverage of the pre-trial and trial of
his case. The totality of circumstances of the case does not prove that the trial judge acquired a
fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence
presented during the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130 and
its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity of
publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and
fiction about the case continues unabated even today. Commentators still bombard the public with
views not too many of which are sober and sublime. Indeed, even the principal actors in the case
the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz.
The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot
be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v.
Virginia, it was

xxx
 a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when a shocking
crime occurs a community reaction of outrage and public protest often follows, and
thereafter the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility and emotion. To work effectively, it is important
that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348
US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted history, supported by reasons
as valid today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as those of
speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors
which had long been open to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a
public place where the people generally and representatives of the media have a right to be
present, and where their presence historically has been thought to enhance the integrity
and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the First Amendment: without
the freedom to attend such trials, which people have exercised for centuries, important
aspects of freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances
can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro,
et al., we held that to warrant a finding of prejudicial publicity there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will prove that the tone and content
of the publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on
the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing.
To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extra-record
evidence except evidence properly adduced by the parties. The length of time the investigation
was conducted despite its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners
seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin
the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to
offer more than hostile headlines to discharge his burden of proof. 131 He needs to show more weighty
social science evidence to successfully prove the impaired capacity of a judge to render a bias-free
decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a
special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has
been made by the petitioner that the minds of the members of this special panel have already been
infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.
1wphi1.nt
The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner
will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light
of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good
faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the
theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman
flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation
prosecutors the independence to make their own findings and recommendations albeit they are
reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they
believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking
slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner
and the latter believes that the findings of probable cause against him is the result of bias, he still has the
remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to
prosecute the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135To be sure, the duty of a prosecutor is more to
do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and should never be the definition of the
rule of law. If democracy has proved to be the best form of government, it is because it has respected the
right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw
away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed
as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the
custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol" from
the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process
under Section 45 of the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner
elevated the case to this Court via a petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal cases were filed in court. 1w phi 1.nt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA's determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due process
was violated. It should be noted that due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. 1 At
any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official
capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section
45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it must be
accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our laws do
not allow the commission of a crime, such as defamation, in the name of official duty. 3 The imputation of
theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may have caused by his act
done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4 It appears that even
the government's chief legal counsel, the Solicitor General, does not support the stand taken by petitioner
and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is
such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.5 As already mentioned above, the commission of a crime is not part of official
duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is required in
cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary investigation does
not affect the court's jurisdiction nor does it impair the validity of the information or otherwise render it
defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED. 1wphi1.nt
G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also
known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one
Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a
"buy-bust operation" conducted by the Philippine police narcotic agents in the house of Minucher, an
Iranian national, where a quantity of heroin, a prohibited drug, was said to have been seized. The narcotic
agents were accompanied by private respondent Arthur Scalzo who would, in due time, become one of
the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino
rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges of
drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study
in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was
appointed Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and
continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the
Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose Iigo, on
the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians
whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and
other Iranian products was his business after the Khomeini government cut his pension of over $3,000.00
per month. During their introduction in that meeting, the defendant gave the plaintiff his calling card, which
showed that he is working at the US Embassy in the Philippines, as a special agent of the Drug
Enforcement Administration, Department of Justice, of the United States, and gave his address as US
Embassy, Manila. At the back of the card appears a telephone number in defendants own handwriting,
the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and
the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a
fee of $2,000.00 per visa. Their conversation, however, was more concentrated on politics, carpets and
caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant
at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that
the defendant was not yet there, he requested the restaurant people to x x x place the same in the
refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was paid. Then their
conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.
1awphi1.nt
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and
directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be
leaving the Philippines very soon and requested him to come out of the house for a while so that he can
introduce him to his cousin waiting in a cab. Without much ado, and without putting on his shirt as he was
only in his pajama pants, he followed the defendant where he saw a parked cab opposite the street. To
his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the
company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed and after
about 20 minutes in the street, he was brought inside the house by the defendant. He was made to sit
down while in handcuffs while the defendant was inside his bedroom. The defendant came out of the
bedroom and out from defendant's attach case, he took something and placed it on the table in front of
the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and likewise
arrested Torabian, who was playing chess with him in the bedroom and both were handcuffed together.
Plaintiff was not told why he was being handcuffed and why the privacy of his house, especially his
bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his telephone was
unplugged. He asked for any warrant, but the defendant told him to `shut up. He was nevertheless told
that he would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his
safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00
which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth
$10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian carpets,
valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax sets. He
claimed that when he was handcuffed, the defendant took his keys from his wallet. There was, therefore,
nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in the
papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but
also in America and in Germany. His friends in said places informed him that they saw him on TV with
said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together,
where they were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved
for extension of time to file an answer pending a supposed advice from the United States Department of
State and Department of Justice on the defenses to be raised. The trial court granted the motion. On 27
October 1988, Scalzo filed another special appearance to quash the summons on the ground that he, not
being a resident of the Philippines and the action being one in personam, was beyond the processes of
the court. The motion was denied by the court, in its order of 13 December 1988, holding that the filing by
Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary appearance
equivalent to service of summons which could likewise be construed a waiver of the requirement of formal
notice. Scalzo filed a motion for reconsideration of the court order, contending that a motion for an
extension of time to file an answer was not a voluntary appearance equivalent to service of summons
since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States
government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due
to the need (1) for both the Department of State and the Department of Justice to agree on the defenses
to be raised and (2) to refer the case to a Philippine lawyer who would be expected to first review the
case. The court a quo denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing
the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the
ruling of the trial court. Scalzo then elevated the incident in a petition for review on certiorari, docketed
G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with SC Circular
No. 1-88; in any event, the Court added, Scalzo had failed to show that the appellate court was in error in
its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception of
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit his
answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of
Minuchers failure to state a cause of action in his complaint and (b) that Scalzo had acted in the
discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion
to dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414
of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the
note is a true and faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion
to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No.
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in
Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per this Courts resolution of 07 August 1990. On 31 October 1990, the
Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review with this Court, docketed G.R.
No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214
SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992,
penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate
court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that
the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the
complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his
personal capacity and outside the scope of his official duties and, absent any evidence to the contrary, the
issue on Scalzos diplomatic immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant."2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was
a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable
for the acts complained of committed outside his official duties. On appeal, the Court of Appeals reversed
the decision of the trial court and sustained the defense of Scalzo that he was sufficiently clothed with
diplomatic immunity during his term of duty and thereby immune from the criminal and civil jurisdiction of
the "Receiving State" pursuant to the terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or
not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No.
97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely different
manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality
of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court
that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of
action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not public respondent
Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune from civil suit
conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal question raised in the
instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed, the
Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June
1990, unequivocally states that he would present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila.
Having thus reserved his right to present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss cannot be
relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity." 4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers in
the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual arrest."
Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court. 5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October
1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court of
Scalzos diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive Department, recognizing and respecting the diplomatic
status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement to
all diplomatic privileges and immunities under the Vienna Convention; and (2) the Department of Foreign
Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the surveillance and subsequent arrest of Minucher, the
certification of the Drug Enforcement Administration of the United States Department of Justice that
Scalzo was a special agent assigned to the Philippines at all times relevant to the complaint, and the
special power of attorney executed by him in favor of his previous counsel6 to show (a) that the United
States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign
Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10
August 1988) was listed as being an Assistant Attach of the United States diplomatic mission and
accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12, Scalzo described
the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to provide
criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug
control programs upon the request of the host country, 2) to establish and maintain liaison with the host
country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by
the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states
of ancient Greece, among the peoples of the Mediterranean before the establishment of the Roman
Empire, and among the states of India, the person of the herald in time of war and the person of the
diplomatic envoy in time of peace were universally held sacrosanct. 7 By the end of the 16th century, when
the earliest treatises on diplomatic law were published, the inviolability of ambassadors was firmly
established as a rule of customary international law.8Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the preeminent embodiment of the
state he represented, and the foreign secretary, the official usually entrusted with the external affairs of
the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state,
it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and large, the representation of the interests of the sending
state and promoting friendly relations with the receiving state. 9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states;
and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of the
(diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff.
Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the
Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions,
it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic
agents," under the terms of the Convention, are vested with blanket diplomatic immunity from civil and
criminal suits. The Convention defines "diplomatic agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear stressing that
even consuls, who represent their respective states in concerns of commerce and navigation and perform
certain administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick in ascertaining whether a person
is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic
nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attach of the United
States diplomatic mission and was accredited as such by the Philippine Government. An attach belongs
to a category of officers in the diplomatic establishment who may be in charge of its cultural, press,
administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or
departments of the government, other than the foreign ministry or department, who are detailed by their
respective ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his
duties and are administratively under him, but their main function is to observe, analyze and interpret
trends and developments in their respective fields in the host country and submit reports to their own
ministries or departments in the home government.14 These officials are not generally regarded as
members of the diplomatic mission, nor are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791,
all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The
presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in
dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial
court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for
the moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in
view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days
from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first
extension of time to file the Answer because the Departments of State and Justice of the United States of
America were studying the case for the purpose of determining his defenses, before he could secure the
Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument that such
note is authentic, the complaint for damages filed by petitioner cannot be peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The
public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it
should have been the most proper and appropriate recourse. It should not have been overwhelmed by the
self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet
been proved. The undue haste with which respondent Court yielded to the private respondent's claim is
arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office
of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an
Assistant Attach of the United States diplomatic mission and was, therefore, accredited diplomatic status
by the Government of the Philippines." No certified true copy of such "records," the supposed bases for
the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters,
the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly
be no less than compelling, in its post litem motam issuances. It might be recalled that the privilege is not
an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial jurisdiction. 16 The government of the United States itself,
which Scalzo claims to be acting for, has formulated its standards for recognition of a diplomatic agent.
The State Department policy is to only concede diplomatic status to a person who possesses an
acknowledged diplomatic title and "performs duties of diplomatic nature."17 Supplementary criteria for
accreditation are the possession of a valid diplomatic passport or, from States which do not issue such
passports, a diplomatic note formally representing the intention to assign the person to diplomatic duties,
the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic
functions on an essentially full-time basis.18 Diplomatic missions are requested to provide the most
accurate and descriptive job title to that which currently applies to the duties performed. The Office of the
Protocol would then assign each individual to the appropriate functional category. 19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established
that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct
surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should
be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the
acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of
State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign from
suit20 and, with the emergence of democratic states, made to attach not just to the person of the head of
state, or his representative, but also distinctly to the state itself in its sovereign capacity. 21 If the acts giving
rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is, under the maxim - par in parem, non habet imperium - that all states are
sovereign equals and cannot assert jurisdiction over one another.22 The implication, in broad terms, is that
if the judgment against an official would require the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit
must be regarded as being against the state itself, although it has not been formally impleaded. 23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the distribution,
possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent,
it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in
the discharge of their duties. x x x. It cannot for a moment be imagined that they were acting in their
private or unofficial capacity when they apprehended and later testified against the complainant. It follows
that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued. x x x As they have acted on behalf
of the government, and within the scope of their authority, it is that government, and not the petitioners
personally, [who were] responsible for their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals 26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts contrary
to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of
the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State
authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts
of the State, and an action against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the ground that, while claiming to act for
the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent. The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are sued in their individual capacity.
This situation usually arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond
the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it
can be established that he is acting within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf
both involve officers and personnel of the United States, stationed within Philippine territory, under the
RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between the
governments of the Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the consent
or imprimatur of the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges
of communication between agencies of the government of the two countries, certifications from officials of
both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at
the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status"
of the latter but they give enough indication that the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-
buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help
contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.
G.R. No. L-26379 December 27, 1969

WILLIAM C. REAGAN, ETC., petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, respondent.

Quasha, Asperilla, Blanco, Zafra and Tayag for petitioner.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete,
Solicitor Lolita O. Gal-lang and Special Attorney Gamaliel H. Mantolino for respondent.

FERNANDO, J.:

A question novel in character, the answer to which has far-reaching implications, is raised by petitioner
William C. Reagan, at one time a civilian employee of an American corporation providing technical
assistance to the United States Air Force in the Philippines. He would dispute the payment of the income
tax assessed on him by respondent Commissioner of Internal Revenue on an amount realized by him on
a sale of his automobile to a member of the United States Marine Corps, the transaction having taken
place at the Clark Field Air Base at Pampanga. It is his contention, seriously and earnestly expressed,
that in legal contemplation the sale was made outside Philippine territory and therefore beyond our
jurisdictional power to tax.

Such a plea, far-fetched and implausible, on its face betraying no kinship with reality, he would justify by
invoking, mistakenly as will hereafter be more fully shown an observation to that effect in a 1951
opinion, 1 petitioner ignoring that such utterance was made purely as a flourish of rhetoric and by way of
emphasizing the decision reached, that the trading firm as purchaser of army goods must respond for the
sales taxes due from an importer, as the American armed forces being exempt could not be taxed as such
under the National Internal Revenue Code.2 Such an assumption, inspired by the commendable aim to
render unavailing any attempt at tax evasion on the part of such vendee, found expression anew in a
1962 decision,3 coupled with the reminder however, to render the truth unmistakable, that "the areas
covered by the United States Military Bases are not foreign territories both in the political and
geographical sense."

As thus clarified, it is manifest that such a view amounts at most to a legal fiction and is moreover obiter. It
certainly cannot control the resolution of the specific question that confronts us. We declare our stand in
an unequivocal manner. The sale having taken place on what indisputably is Philippine territory,
petitioner's liability for the income tax due as a result thereof was unavoidable. As the Court of Tax
Appeals reached a similar conclusion, we sustain its decision now before us on appeal.

In the decision appealed from, the Court of Tax Appeals, after stating the nature of the case, started the
recital of facts thus: "It appears that petitioner, a citizen of the United States and an employee of Bendix
Radio, Division of Bendix Aviation Corporation, which provides technical assistance to the United States
Air Force, was assigned at Clark Air Base, Philippines, on or about July 7, 1959 ... . Nine (9) months
thereafter and before his tour of duty expired, petitioner imported on April 22, 1960 a tax-free 1960
Cadillac car with accessories valued at $6,443.83, including freight, insurance and other charges."4 Then
came the following: "On July 11, 1960, more than two (2) months after the 1960 Cadillac car was imported
into the Philippines, petitioner requested the Base Commander, Clark Air Base, for a permit to sell the car,
which was granted provided that the sale was made to a member of the United States Armed Forces or a
citizen of the United States employed in the U.S. military bases in the Philippines. On the same date, July
11, 1960, petitioner sold his car for $6,600.00 to a certain Willie Johnson, Jr. (Private first class), United
States Marine Corps, Sangley Point, Cavite, Philippines, as shown by a Bill of Sale . . . executed at Clark
Air Base. On the same date, Pfc. Willie (William) Johnson, Jr. sold the car to Fred Meneses for
P32,000.00 as evidenced by a deed of sale executed in Manila."5

As a result of the transaction thus made, respondent Commissioner of Internal Revenue, after deducting
the landed cost of the car as well as the personal exemption to which petitioner was entitled, fixed as his
net taxable income arising from such transaction the amount of P17,912.34, rendering him liable for
income tax in the sum of P2,979.00. After paying the sum, he sought a refund from respondent claiming
that he was exempt, but pending action on his request for refund, he filed the case with the Court of Tax
Appeals seeking recovery of the sum of P2,979.00 plus the legal rate of interest.

As noted in the appealed decision: "The only issue submitted for our resolution is whether or not the said
income tax of P2,979.00 was legally collected by respondent for petitioner."6 After discussing the legal
issues raised, primarily the contention that the Clark Air Base "in legal contemplation, is a base outside
the Philippines" the sale therefore having taken place on "foreign soil", the Court of Tax Appeals found
nothing objectionable in the assessment and thereafter the payment of P2,979.00 as income tax and
denied the refund on the same. Hence, this appeal predicated on a legal theory we cannot accept.
Petitioner cannot make out a case for reversal.

1. Resort to fundamentals is unavoidable to place things in their proper perspective, petitioner apparently
feeling justified in his refusal to defer to basic postulates of constitutional and international law, induced no
doubt by the weight he would accord to the observation made by this Court in the two opinions earlier
referred to. To repeat, scant comfort, if at all is to be derived from such an obiter dictum, one which is
likewise far from reflecting the fact as it is.

Nothing is better settled than that the Philippines being independent and sovereign, its authority may be
exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its
decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies
must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily,
likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty.

It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That
is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property
of a state-force due to which it has the exclusive capacity of legal self-determination and self-
restriction."7 A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable
competence.

Its laws may as to some persons found within its territory no longer control. Nor does the matter end
there. It is not precluded from allowing another power to participate in the exercise of jurisdictional right
over certain portions of its territory. If it does so, it by no means follows that such areas become
impressed with an alien character. They retain their status as native soil. They are still subject to its
authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease
to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot
be foreign territory.

Decisions coming from petitioner's native land, penned by jurists of repute, speak to that effect with
impressive unanimity. We start with the citation from Chief Justice Marshall, announced in the leading
case of Schooner Exchange v. M'Faddon,8 an 1812 decision: "The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to
the extent of the restriction, and an investment of that sovereignty to the same extent in that power which
could impose such restriction." After which came this paragraph: "All exceptions, therefore, to the full and
complete power of a nation within its own territories, must be traced up to the consent of the nation itself.
They can flow from no other legitimate source."

Chief Justice Taney, in an 1857 decision,9 affirmed the fundamental principle of everyone within the
territorial domain of a state being subject to its commands: "For undoubtedly every person who is found
within the limits of a government, whether the temporary purposes or as a resident, is bound by its laws."
It is no exaggeration then for Justice Brewer to stress that the United States government "is one having
jurisdiction over every foot of soil within its territory, and acting directly upon each [individual found
therein]; . . ."10

Not too long ago, there was a reiteration of such a view, this time from the pen of Justice Van Devanter.
Thus: "It now is settled in the United States and recognized elsewhere that the territory subject to its
jurisdiction includes the land areas under its dominion and control the ports, harbors, bays, and other in
closed arms of the sea along its coast, and a marginal belt of the sea extending from the coast line
outward a marine league, or 3 geographic miles."11 He could cite moreover, in addition to many American
decisions, such eminent treatise-writers as Kent, Moore, Hyde, Wilson, Westlake, Wheaton and
Oppenheim.

As a matter of fact, the eminent commentator Hyde in his three-volume work on International Law, as
interpreted and applied by the United States, made clear that not even the embassy premises of a foreign
power are to be considered outside the territorial domain of the host state. Thus: "The ground occupied by
an embassy is not in fact the territory of the foreign State to which the premises belong through
possession or ownership. The lawfulness or unlawfulness of acts there committed is determined by the
territorial sovereign. If an attache commits an offense within the precincts of an embassy, his immunity
from prosecution is not because he has not violated the local law, but rather for the reason that the
individual is exempt from prosecution. If a person not so exempt, or whose immunity is waived, similarly
commits a crime therein, the territorial sovereign, if it secures custody of the offender, may subject him to
prosecution, even though its criminal code normally does not contemplate the punishment of one who
commits an offense outside of the national domain. It is not believed, therefore, that an ambassador
himself possesses the right to exercise jurisdiction, contrary to the will of the State of his sojourn, even
within his embassy with respect to acts there committed. Nor is there apparent at the present time any
tendency on the part of States to acquiesce in his exercise of it."12

2. In the light of the above, the first and crucial error imputed to the Court of Tax Appeals to the effect that
it should have held that the Clark Air Force is foreign soil or territory for purposes of income tax legislation
is clearly without support in law. As thus correctly viewed, petitioner's hope for the reversal of the decision
completely fades away. There is nothing in the Military Bases Agreement that lends support to such an
assertion. It has not become foreign soil or territory. This country's jurisdictional rights therein, certainly
not excluding the power to tax, have been preserved. As to certain tax matters, an appropriate exemption
was provided for.

Petitioner could not have been unaware that to maintain the contrary would be to defy reality and would
be an affront to the law. While his first assigned error is thus worded, he would seek to impart plausibility
to his claim by the ostensible invocation of the exemption clause in the Agreement by virtue of which a
"national of the United States serving in or employed in the Philippines in connection with the construction,
maintenance, operation or defense of the bases and residing in the Philippines only by reason of such
employment" is not to be taxed on his income unless "derived from Philippine source or sources other
than the United States sources."13 The reliance, to repeat, is more apparent than real for as noted at the
outset of this opinion, petitioner places more faith not on the language of the provision on exemption but
on a sentiment given expression in a 1951 opinion of this Court, which would be made to yield such an
unwarranted interpretation at war with the controlling constitutional and international law principles. At any
rate, even if such a contention were more adequately pressed and insisted upon, it is on its face devoid of
merit as the source clearly was Philippine.

In Saura Import and Export Co. v. Meer,14 the case above referred to, this Court affirmed a decision
rendered about seven months previously,15 holding liable as an importer, within the contemplation of the
National Internal Revenue Code provision, the trading firm that purchased army goods from a United
States government agency in the Philippines. It is easily understandable why. If it were not thus, tax
evasion would have been facilitated. The United States forces that brought in such equipment later
disposed of as surplus, when no longer needed for military purposes, was beyond the reach of our tax
statutes.

Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting extensively from the earlier
opinion. He could have stopped there. He chose not to do so. The transaction having occurred in 1946,
not so long after the liberation of the Philippines, he proceeded to discuss the role of the American military
contingent in the Philippines as a belligerent occupant. In the course of such a dissertion, drawing on his
well-known gift for rhetoric and cognizant that he was making an as if statement, he did say: "While in
army bases or installations within the Philippines those goods were in contemplation of law on foreign
soil."

It is thus evident that the first, and thereafter the controlling, decision as to the liability for sales taxes as
an importer by the purchaser, could have been reached without any need for such expression as that
given utterance by Justice Tuason. Its value then as an authoritative doctrine cannot be as much as
petitioner would mistakenly attach to it. It was clearly obiter not being necessary for the resolution of the
issue before this Court.16It was an opinion "uttered by the way."17 It could not then be controlling on the
question before us now, the liability of the petitioner for income tax which, as announced at the opening of
this opinion, is squarely raised for the first time.18

On this point, Chief Justice Marshall could again be listened to with profit. Thus: "It is a maxim, not to be
disregarded, that general expressions, in every opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the very point is presented for decision." 19

Nor did the fact that such utterance of Justice Tuason was cited in Co Po v. Collector of Internal
Revenue,20 a 1962 decision relied upon by petitioner, put a different complexion on the matter. Again, it
was by way of pure embellishment, there being no need to repeat it, to reach the conclusion that it was
the purchaser of army goods, this time from military bases, that must respond for the advance sales taxes
as importer. Again, the purpose that animated the reiteration of such a view was clearly to emphasize that
through the employment of such a fiction, tax evasion is precluded. What is more, how far divorced from
the truth was such statement was emphasized by Justice Barrera, who penned the Co Po opinion, thus:
"It is true that the areas covered by the United States Military Bases are not foreign territories both in the
political and geographical sense."21

Justice Tuason moreover made explicit that rather than corresponding with reality, what was said by him
was in the way of a legal fiction. Note his stress on "in contemplation of law." To lend further support to a
conclusion already announced, being at that a confirmation of what had been arrived at in the earlier
case, distinguished by its sound appreciation of the issue then before this Court and to preclude any tax
evasion, an observation certainly not to be taken literally was thus given utterance.

This is not to say that it should have been ignored altogether afterwards. It could be utilized again, as it
undoubtedly was, especially so for the purpose intended, namely to stigmatize as without support in law
any attempt on the part of a taxpayer to escape an obligation incumbent upon him. So it was quoted with
that end in view in the Co Po case. It certainly does not justify any effort to render futile the collection of a
tax legally due, as here. That was farthest from the thought of Justice Tuason.

What is more, the statement on its face is, to repeat, a legal fiction. This is not to discount the uses of
a fictio juris in the science of the law. It was Cardozo who pointed out its value as a device "to advance
the ends of justice" although at times it could be "clumsy" and even "offensive". 22 Certainly, then, while far
from objectionable as thus enunciated, this observation of Justice Tuason could be misused or
misconstrued in a clumsy manner to reach an offensive result. To repeat, properly used, a legal fiction
could be relied upon by the law, as Frankfurter noted, in the pursuit of legitimate ends. 23 Petitioner then
would be well-advised to take to heart such counsel of care and circumspection before invoking not a
legal fiction that would avoid a mockery of the law by avoiding tax evasion but what clearly is a
misinterpretation thereof, leading to results that would have shocked its originator.

The conclusion is thus irresistible that the crucial error assigned, the only one that calls for discussion to
the effect that for income tax purposes the Clark Air Force Base is outside Philippine territory, is utterly
without merit. So we have said earlier.

3. To impute then to the statement of Justice Tuason the meaning that petitioner would fasten on it is, to
paraphrase Frankfurter, to be guilty of succumbing to the vice of literalness. To so conclude is, whether by
design or inadvertence, to misread it. It certainly is not susceptible of the mischievous consequences now
sought to be fastened on it by petitioner.

That it would be fraught with such peril to the enforcement of our tax statutes on the military bases under
lease to the American armed forces could not have been within the contemplation of Justice Tuason. To
so attribute such a bizarre consequence is to be guilty of a grave disservice to the memory of a great
jurist. For his real and genuine sentiment on the matter in consonance with the imperative mandate of
controlling constitutional and international law concepts was categorically set forth by him, not as
an obiter but as the rationale of the decision, in People v. Acierto24 thus: "By the [Military Bases]
Agreement, it should be noted, the Philippine Government merely consents that the United States
exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or
expediency over the bases as part of the Philippine territory or divested itself completely of jurisdiction
over offenses committed therein."

Nor did he stop there. He did stress further the full extent of our territorial jurisdiction in words that do not
admit of doubt. Thus: "This provision is not and can not on principle or authority be construed as a
limitation upon the rights of the Philippine Government. If anything, it is an emphatic recognition and
reaffirmation of Philippine sovereignty over the bases and of the truth that all jurisdictional rights granted
to the United States and not exercised by the latter are reserved by the Philippines for itself."25

It is in the same spirit that we approach the specific question confronting us in this litigation. We hold, as
announced at the outset, that petitioner was liable for the income tax arising from a sale of his automobile
in the Clark Field Air Base, which clearly is and cannot otherwise be other than, within our territorial
jurisdiction to tax.

4. With the mist thus lifted from the situation as it truly presents itself, there is nothing that stands in the
way of an affirmance of the Court of Tax Appeals decision. No useful purpose would be served by
discussing the other assigned errors, petitioner himself being fully aware that if the Clark Air Force Base is
to be considered, as it ought to be and as it is, Philippine soil or territory, his claim for exemption from the
income tax due was distinguished only by its futility.

There is further satisfaction in finding ourselves unable to indulge petitioner in his plea for reversal. We
thus manifest fealty to a pronouncement made time and time again that the law does not look with favor
on tax exemptions and that he who would seek to be thus privileged must justify it by words too plain to be
mistaken and too categorical to be misinterpreted.26 Petitioner had not done so. Petitioner cannot do so.

WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966 denying the refund of P2,979.00
as the income tax paid by petitioner is affirmed. With costs against petitioner.

G.R. No. 212160 February 4, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
DENNIS SUMILI, Accused-Appellant.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 assailing the Decision2 dated January 29, 2014 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 01075, which affirmed in toto the Decision3 dated August 10, 2009 of
the Regional Trial Court of Iligan City, Branch 3 (RTC) in Crim. Case No. 12595 finding accused-appellant
Dennis Sumili (Sumili) guilty beyond reasonable doubt of violating Section 5,4 Article II of Republic Act No.
(RA) 9165,5 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

On June 30, 2006, an Information6 was filed before the RTC charging Sumili of violating Section 5, Article
II of RA 9165, viz.:

Crim. Case No. 12595

That, on or about June 7, 2006, in the City of Iligan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, without having been authorized by law, did then and there willfully,
unlawfully and feloniously sell one (1) sachet of Methamphetamine Hydrochloride, a dangerousdrug
commonly known as Shabufor the amount of P200.00.

Contrary to and in violation of Sec. 5, ART. II, RA 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.

City of Iligan, June 30, 2006.

According to the prosecution, on June 7, 2006, the Philippine Drug Enforcement Agency Iligan City Sub-
Office received a report from a confidential informant that Sumili was selling shabu. Acting on the same,
SPO2 Edgardo Englatiera7 (SPO2 Englatiera) dispatched SPO2 Diosdado Cabahug (SPO2 Cabahug) to
conduct surveillance on Sumili, which confirmed the truth and veracity of the aforesaid report.
Consequently, SPO2 Englatiera organized a team divided intotwo (2) groups and briefed them on the buy-
bust operation. He also prepared the marked money, consisting of one (1) two hundred peso (P200.00)
bill, with serial number L507313.8

At around 5:10 in the afternoon of the same day, the buy-bust team headed to the target area. Upon
arrival, the poseur-buyer approached Sumilis house to buy shabu. After Sumili let the poseur-buyer in,
the latter gave the pre-arranged signal that the sale has been consummated. Almost immediately, the
buy-bust team stormed the house but Sumili escaped by jumping through the window, throwing the
marked money at the roof beside his house. The poseur-buyer turnedover the sachet of suspected
shabuto SPO2 Englatiera, who marked the same with "DC-1," representing the initials of SPO2
Cabahug.9 SPO2 Englatiera then prepared a request for laboratory examination and instructed Non-
Uniform Personnel Carlito Ong (NUP Ong) to bring the sachet together with the request to the PNP Crime
Laboratory for examination. However, NUP Ong failed to do so on the same day as the PNP Crime
Laboratory was already closed.10 It was only on June 9, 2006, or two (2) days after the buy-bust operation,
that NUP Ong was able to bring and turn-over the seized sachet to the PNP Crime Laboratory.11 Upon
examination, it was confirmed thatsaid sachet contained 0.32 grams of methamphetamine hydrochloride,
or shabu.12

In his defense, Sumili denied selling shabu. He and his daughter claimed that he was a fishball vendor,
and that on the date and time of the incident, he was at the market buying ingredients. When he returned
to his residence, his wife told him that policemen were looking for him.13 The RTC Ruling

In a Decision14 dated August 10, 2009, the RTC found Sumili guilty beyond reasonable doubt of violating
Section 5, Article II of RA 9165 and accordingly, sentenced him to life imprisonment, and ordered him to
pay a fine in the amount of P500,000.00.15

The RTC found that a buy-bust operation indeed occurred where Sumili sold the seized sachet to the
poseur-buyer. In this regard, it gave credence to the straightforward and categorical testimonies of
prosecution witnesses detailing how the police officers received information that Sumili was selling shabu,
investigated and confirmed that he indeed was selling shabu, conducted the buy-bust operation,
recovered, marked, and transmitted the seized item from Sumilito the PNP Crime Laboratory, and that the
laboratory results yielded positive for shabu. Conversely, it did not give weight to the defense testimonies
which merely deniedthe existence of the buy-bust operation and insisted that Sumili was not selling
drugs.16

Dissatisfied, Sumili appealed17 his conviction to the CA.

The CA Ruling

In a Decision18 dated January 29, 2014, the CA affirmed Sumilis conviction in toto. 19 It agreed with the
RTCs finding that a buy-bust operation actually occurred, resulting in the seizure of a sachet containing
shabu.20Further, the CA also held thatdespite the police officers noncompliance with the procedure
enshrined in Section 21, Article II of RA 9165, the identity and integrity of the corpus delicti, or the seized
drug itself, was nevertheless preserved and, thus, Sumilis conviction must be sustained. 21

Finally, the CA opined that Sumili failed to rebut by clear and convincing evidence the presumption
ofregularity in the performance of official duties enjoyed by the police officers involved in the buy-bust
operation.22

Aggrieved, Sumili filed the instant appeal.23

The Issue Before the Court

The issue for the Courts resolution is whether Sumilis conviction for violation of Section 5, Article II of RA
9165 should be upheld.

The Courts Ruling

The appeal is meritorious.

In order to convict an accused for violation of RA 9165, or the crime of sale of dangerous drugs, the
prosecution must establish the concurrence of the following elements: (a) the identity of the buyer and the
seller, the object, and the consideration; and (b) the delivery of the thing sold and the payment. 24 Note that
what remains material for conviction is the proof that the transaction actually took place, coupled with the
presentation before the court of the corpus delicti.25 It is also important that the integrity and evidentiary
value of the seized items be preserved. Simply put, the dangerous drug presented in court as evidence
against an accused must be the same as that seized from him. The chain of custody requirement
removes any unnecessary doubts regarding the identity of the evidence. 26 As held in People v. Viterbo:27

In every prosecution for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the
following elements must concur: (a) the identities of the buyer and the seller, object, and consideration;
and (b) the delivery of the thing sold and the corresponding payment for it. As the dangerous drug itself
forms an integral and key part of the corpus delicti of the crime, it is thereforeessential that the identity of
the prohibited drug be established beyond reasonable doubt. Thus, the prosecution must be able to
account for each link in the chain of custody over the dangerous drug, fromthe moment it was seized from
the accused up to the time it was presented in court as proof of the corpus delicti.Elucidating on the
custodial chain process, the Court, in the case of People v. Cervantes [(600 Phil. 819, 836 [2009])], held:
As a mode of authenticating evidence, the chain of custody rule requires that the admission of an exhibit
be preceded by evidence sufficient to support a finding that the matter in question is what the proponent
claims it to be. In context, this would ideally include testimony about every link in the chain, from the
1wphi 1

seizure of the prohibited drug up to the time it is offered into evidence, in such a way that everyone who
touched the exhibit would describe how and from whom it was received, where it was and what happened
to it while in the witness possession, the condition in which it was received, and the condition in which it
was delivered to the next link in the chain. x x x.

The chain of custody requirement "ensures that unnecessary doubts respecting the identity of the
evidence are minimized if not altogether removed."28 (Emphases and underscoring supplied)

To expand, Section 2129 of RA 9165 provides the "chain of custody rule" outlining the procedure that the
apprehending officers should follow in handling the seized drugs, in order to preserve its integrity and
evidentiary value. It requires, inter alia, that: (a) the apprehending team that has initial custody over the
seized drugs immediately conduct an inventory and take photographs of the same in the presence of the
accused or the person from whom such items were seized, orthe accuseds or the persons representative
or counsel, a representative from the media, the Department of Justice, and any elected public official
who shall then sign the copies of the inventory; and (b) the seized drugs be turned over to the PNP Crime
Laboratory within 24 hours from its confiscation for examination purposes. While the "chain of custody
rule" demands utmost compliance from the aforesaid officers, Section 21 of the Implementing Rules and
Regulations (IRR) of RA 9165,30 as well as jurisprudence nevertheless provide that noncompliance with
the requirements of thisrule will not automatically render the seizure and custody of the items void and
invalid, so long as: (a) there is a justifiable ground for such non-compliance; AND(b) the evidentiary value
of the seized items are properly preserved. Hence, any divergence from the prescribed procedure must
be justified and should not affect the integrity and evidentiary value of the confiscated items. 31

After a judicious review of the records, the Court finds that the prosecution failed to establish the identity
of the substance allegedly confiscated from Sumili due to unjustified gaps in the chain of custody, thus,
militating against a finding of guilt beyond reasonable doubt.

As may be gleaned from the established facts, the buy-bust operation was conducted on June 7, 2006.
When SPO2 Englatieraseized the sachet from Sumili, he marked the same with the initials "DC-1" and,
later, he returned to the police station to prepare the request for the examination of the sachets contents.
Thereafter, he ordered NUP Ong to bring the sachet as well as the request to the PNP Crime Laboratory
for examination. However, NUP Ong failed to do so within 24 hours after the buy-bust operation as he
only delivered the sachet to the PNP Crime Laboratory on June 9, 2006, or two (2) days after the buy-bust
operation.No other than SPO2 Englatiera and NUP Ong attested to these facts intheir respective
testimonies, to wit:32 Prosecutor Celso Sarsaba (Pros. Sarsaba): Who prepared this request for laboratory
examination?

SPO2 Englatiera: I myself, sir.

Q: What did you do with the requestfor the laboratory examination together with the one sachet of shabu?

A: I instructed [NUP Ong] to turn-over the evidence and bring for laboratory examination (sic).

Q: Was [NUP Ong] able to bring the request for laboratory examination together with the sachet of shabu
to the crime laboratory on that same day?

A: The following day.

Q: Why?

A: Because it was already 5:00 oclock (sic) sir I think it was Friday sir, the laboratory was already closed.

xxxx

As for NUP Ong:33

Pros. Sarsaba: And how about the one sachet of shabu allegedly bought from the accused, who was in
possession of that shabu at that time?

NUP Ong: SPO2 [Englatiera] placed it inside the cellophane attached together with the request.
Q: And who was supposed to bring that request for laboratory [examination] and the one sachet of
shabuallegedly purchased from the accused to the PNP crime laboratory?

A: No, it was already late at night so we agreed to do it on the following day.

Q: So June 7, 2006, do you recall what day was that?

A: I think it was [a] Friday.

Q: And when did you bring this request for laboratory [examination] to the [PNP] crime laboratory, on what
date?

A: It was delivered on June 9, 2006.

xxxx

To justify the delay inthe turn-over of the corpus delicti, SPO2 Englatiera and NUP Ong insist that the
PNP Crime Laboratory was already closed on June 7, 2006, and since it was a Friday, the delivery of the
seized sachet was only done on June 9, 2006. However, contrary to their claims, June 7, 2006 is not a
Friday, but a Wednesday.34Thus, if the PNP Crime Laboratory was indeed closed on June 7, 2006, the
delivery of the seized sachet could have easily been done on the next day, or on June 8, 2006, instead of
doing it two (2) days after the buy-bust operation. This glaring fact, coupled with the absence in the
records as to who among the apprehending officers had actual custody of the seized sachet from the time
it was prepared for turn-over until its delivery to the PNP Crime Laboratory, presents a substantial and
unexplained gap in the chain of custody of the alleged shabu seized from Sumili. Undoubtedly, the
integrity and evidentiary value of the corpus delicti had been compromised.

It must be emphasized that in criminal prosecutions involving illegal drugs, the presentation of the drugs
which constitute the corpus delicti of the crime calls for the necessity of proving with moral certainty that
they are the same seized items.35 Failing in which, the acquittal of the accused on the ground of
reasonable doubt becomes a matter of right,36 as in this case.

In sum, since the identity of the prohibited drugs had not been established by proof beyond reasonable
doubt, Sumili's conviction must be immediately set aside.

WHEREFORE, the appeal is GRANTED. The Decision dated January 29, 2014 of the Court of Appeals in
CA-G.R. CR HC No. 01075 is hereby REVERSED and SET ASIDE, and accordingly, accused-appellant
Dennis Sumili is ACQUITTED of the crime of violation of Section 5, Article II of Republic Act No. 9165.
The Director of the Bureau of Corrections is ordered to cause his immediate release, unless he is being
lawfully held for any other reason.

SO ORDERED.

G.R. No. 175781 March 20, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FRANCISCA TALARO,* GREGORIO TALARO,** NORBERTO (JUN) ADVIENTO, RENATO RAMOS,
RODOLFO DUZON,*** RAYMUNDO ZAMORA** and LOLITO AQUINO, Accused.
NORBERTO (JUN) ADVIENTO, RENATO RAMOS and LOLITO AQUINO, Accused-Appellants.

DECISION

PERALTA, J.:
This is an automatic review of the Decision1 of the Court of Appeals (CA) promulgated on December, 15,
2005, in accordance with Section 2 of Rule 125, in relation to Section 3 of Rule 56, of the Rules of Court.
The CA affirmed with modification the judgment rendered by the Regional Trial Court (RTC), Branch 38 of
Lingayen, Pangasinan, thereby finding accused-appellants Norberto (Jun) Adviento, Renato Ramos and
Lolito Aquino, guilty beyond reasonable doubt of the crime of Murder and sentencing them to death, but
acquitting accused Rodolfo Duzon.

Accused-appellants were charged before the RTC of Urdaneta, Pangasinan, with the crime of murder
under an Information reading as follows:

That on or about the 26th day of April 1994, in the Poblacion of the Municipality of Laoac, Province of
Pangasinan, and within the jurisdiction of this Honorable Court, the said accused, conspiring,
confederating with each other, with intent to kill, and with treachery, and evident premeditation, in
consideration of a price, and by means of motor vehicle, did then and there, willfully, unlawfully and
feloniously attack and shoot one MELVIN ALIPIO, with a handgun hitting the latter in the different parts of
his body and the wounds being mortal caused directly the death of said MELVIN ALIPIO, to the damage
and prejudice of his heirs.

CONTRARY to Article 248, Revised Penal Code.2

The testimonies of prosecution witnesses showed the sequence of events shortly before and after the
killing of victim Melvin Alipio to be as follows.

Raymundo Zamora is the nephew of Gregorio Talaro, the husband of Francisca Talaro. In the morning of
April 24, 1994, when Zamora went home for breakfast after driving his tricycle, he found Francisca Talaro,
Lolito Aquino, Renato "Atong" Ramos, and Norberto "Jun" Adviento conversing among themselves under
a santol tree in front of his (Zamora's) house. He went near the group to find out what they were talking
about and he learned that his aunt, Francisca Talaro, was transacting with the other three accused-
appellants for the killing of Atty. Melvin Alipio. He was merely a meter away from the group so he heard
the group's conversation. He learned that Francisca Talaro would give the three accused-appellants an
advance payment of P30,000.00 and then another P30,000.00 after Atty. Melvin Alipio is killed, with said
last payment to be delivered in Barangay (Brgy.) Bactad. The three accused-appellants then nodded their
heads in agreement. After learning of the group's plan, Zamora got scared and stayed away from the
group, but three days after that meeting in front of his house, he was asked by Francisca Talaro to drive
her and her husband Gregorio to Brgy. Bactad. The Talaro spouses alighted at a place in Brgy. Bactad,
while Zamora stayed in his tricycle and merely waited for them. He assumed that the couple delivered the
payment of P30,000.00 to someone in Brgy. Bactad.3

Accused-appellant Lolito Aquino, when questioned during preliminary investigation, admitted that he and
co-accused Renato Ramos conducted a surveillance on Atty. Alipio in the afternoon of April 25, 1994. 4

Around 6 o'clock in the morning of April 26, 1994, tricycle driver Rodolfo Duzon was at the parking area in
the poblacion of Urdaneta waiting for passengers, when accused-appellant Renato Ramos approached
him. Accused-appellant Ramos offered to pay Rodolfo Duzon P200.00 for the latter to drive Ramos'
motorcycle to Laoac, Pangasinan to take some onions and turnips there. Duzon agreed, so after bringing
his own tricycle home to his house in Bactad, Urdaneta, he then drove Ramos' motorcycle to
the poblacion of Urdaneta. At the poblacion, Ramos bought a basket where he placed the onions and
turnips. Ramos then told Duzon to drive the motorcycle to Laoac, but they first passed by Garcia Street in
Urdaneta. At a house along Garcia Street, Ramos alighted and talked to someone whom Rodolfo Duzon
later came to know as accused-appellant Lolito Aquino. Ramos then told Duzon that after coming from
Laoac, Duzon should leave the motorcycle at that house on Garcia Street with Lolito Aquino. Ramos and
Duzon then proceeded to Laoac, stopping at a gas station where they fueled up. Ramos alighted from the
motorcycle at the gas station and, taking along the basket of onions and turnips, walked towards Guardian
Angel Hospital (the clinic owned by the Alipios). Five minutes after Ramos alighted, Duzon heard three
gunshots coming from the west, and moments later, he saw Ramos, who was coming toward him, being
chased by another man. When Ramos got to the motorcycle, he ordered Duzon to immediately drive
away, and poked a gun at Duzon's back. Ramos then instructed Duzon as to the route they should take
until they reached Urdaneta where Ramos alighted, leaving Duzon with instructions to bring the
motorcycle to Garcia Street, leave it with Lolito Aquino, then meet him (Ramos) again at
the poblacion where he (Duzon) will be paid P200.00 for his services. Duzon did as he was told, but when
he met with Ramos at the poblacion and asked for the P200.00, Ramos got mad and shouted invectives
at him. A few days later, he again ran into Ramos who warned him to keep his silence, threatening to kill
him (Duzon) too if he tells anyone about the killing. Accused-appellant Norberto (Jun) Adviento also
threatened him not to reveal to anyone whatever he knows about the crime. That was why Duzon decided
to keep quiet. Later, however, he revealed the matter to his brother, Victoriano Duzon, who accompanied
him to the Criminal Investigation Services (CIS) Office in Urdaneta so he could give his statement. He
executed affidavits, assisted by a lawyer from the Public Attorneys Office (PAO), attesting to what he
knew about the crime, in his desire to be a state witness. 5

Witness Rene Balanga, who was the helper of the spouses Atty. Melvin and Dr. Lina Alipio, was cleaning
the windows at the clinic of Dr. Alipio around 8 o'clock in the morning of April 26, 1994. He heard three
gunshots coming from the garage of the clinic, which was around ten meters away from where he was.
Immediately after the gunshots, he saw a man quickly walking out from the garage, going towards the
main gate, but he was not able to clearly see the face of the man. He merely observed that the man was
around 5'4" to 5'5" in height, medium-built, wearing a blue jacket and faded maong (denim) pants. He ran
towards the garage and there, he saw Atty. Melvin Alipio lying dead. He then chased after the man so he
could identify him better but he did not succeed in doing so because the driver of the motorcycle that the
gunman was boarding was already drawing something out from the rear portion of the motorcycle. After
the assailant sped off, Balanga went to the police station in Laoac to report the crime and give his
statement before the CIS. Sometime later, at the CIS Office, he identified Rodolfo Duzon as the driver of
the motorcycle used by the gunman to get away.6

Another eyewitness, Eusebio Hidalgo, whose son was confined at the clinic, was sitting at a bench in the
garage of the clinic on the morning of April 26, 1994. Two other women who were looking for Atty. Alipio
also sat at the bench with him after he told them that Atty. Alipio was still having his breakfast. After a few
minutes, a man arrived looking for Dr. Alipio, and also sat at the bench. Thereafter, Atty. Alipio came out
to the garage and talked to the two women. When Atty. Alipio finished talking to them, the man sitting with
them on the bench suddenly stood up and shot Atty. Alipio three times. Atty. Alipio was merely one meter
away from the assailant when the latter shot him. After the shooting, the assailant walked away. Hidalgo
then saw the helper at the clinic, Reny Balanga, run after the assailant, but the latter had whistled to his
companion who was waiting on his motorcycle and the two were able to speed away aboard said vehicle.
Hidalgo identified the assailant from a picture7 shown to him.8 The picture was that of Renato Ramos.9

A few weeks after Atty. Melvin Alipio had been killed, Zamora was in the parking lot in Sta. Maria Norte in
Binalonan, when accused-appellant Aquino approached him and told him to remind Francisca Talaro that
she still has to pay him (Aquino) P10,000.00. Zamora then immediately told his uncle Gregorio Talaro
about Aquino's message and the very next day, Gregorio went to Zamora's house with the P10,000.00.
Gregorio could no longer wait for Aquino so he just left the money with Zamora, instructing him to hand it
over to Aquino when the latter arrives. Later that day, Zamora saw Aquino so he told him (Aquino) to just
get the money from his house. About three weeks later, Aquino again went to Zamora's house, this time
saying he needs another P5,000.00 just in case he needs to escape. Zamora then contacted Francisca
Talaro and conveyed Aquino's message to her. The following day, Gregorio again went to Zamora's
house and left the P3,000.00 for Aquino. That afternoon, Zamora again told Aquino to just pick up the
money from his house. Zamora observed that Aquino seemed happy enough with the P3,000.00 he
received.10

Zamora said that he thinks the Talaros had Atty. Alipio killed because the latter was not able to comply
with his contractual obligations to the Talaros to complete the construction of a building. Dr. Lina Alipio,
the wife of the victim Atty. Melvin Alipio, confirmed that indeed, the victim entered into an agreement with
Rodolfo Talaro, the Talaro spouses' son, for the construction of a building, but the construction was not
finished within the agreed one-year period because of the sudden rise of prices for materials. Atty. Alipio
asked Rodolfo for additional payment so he could finish construction, but the latter refused to pay more.
Dr. Alipio stated that eventually, Atty. Alipio and Rodolfo agreed that Atty. Alipio would return all the
money he received from Rodolfo and the whole property would, in turn, be turned over to Atty. Alipio. Atty.
Alipio was unable to return the money despite several demands made by Rodolfo, and Dr. Alipio believes
this is the reason why the Talaros had her husband killed. Dr. Alipio further testified on matters regarding
expenses for the wake and burial, and the earnings of her husband. 11

Dr. Arnulfo Bacarro conducted the autopsy on the victim and stated that three slugs were taken from the
body of the victim, and the cause of death was internal hemorrhage. 12 Police officers testified on how they
conducted the investigation, stating that accused-appellant Aquino and Zamora's statements were taken
in the presence of their respective lawyers. They maintain that no bodily harm was inflicted on the
accused-appellants while they were being investigated.13

On the other hand, accused-appellant Lolito Aquino stated that he was taken by CIS men without a
warrant of arrest; that he was mauled by police authorities while under detention, but could not undergo a
medical check-up due to fear from threats that he would be killed by police authorities if he did so; that he
was assisted by a PAO lawyer when he made his confession, but he did not read the contents of the
document, Sgt. Tomelden just ordered him to sign the same; that the PAO lawyer is not his own choice;
that he does not know Rodolfo Duzon and Raymundo Zamora; and that he was not present at the
meeting held in Raymundo Zamora's yard. He admitted, however, that the motorcycle used by the
gunman belongs to him; and that he first agreed to be a state witness because he was promised to be
paid P20,000.00 and that he would be placed in the witness protection program. 14

Accused-appellant Norberto (Jun) Adviento's defense is denial and alibi. He claimed that he was not
present during the April 24, 1994 meeting held to plan the killing of Atty. Alipio, because on said date and
time, he was in the house of Congressman Amadito Perez, for whom he works as driver-messenger, and
that morning, he also drove the Congressman's family to church to hear mass. On April 26, 1994, he also
reported for work at the house of the Congressman from 8 o'clock in the morning until 5 o'clock in the
afternoon. He likewise denied personally knowing any of his co-accused except for Duzon whose face is
familiar to him.15

After trial, the RTC rendered judgment as follows:

Wherefore, in the light of all the considerations discussed above, this court hereby finds and holds the
accused Francisca Talaro, Norberto (Jun) Adviento, Renato Ramos, Rodolfo Duzon and Lolito Aquino,
guilty beyond reasonable doubt of the crime of Murder defined and penalized under the provisions of
Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 and conformable thereto,
pursuant to law, hereby imposes on each of the accused the death penalty and to pay proportionately the
costs of the proceedings.

The court further orders the accused to indemnify, jointly and severally, the heirs of the deceased the sum
of P83,000.00 as actual damages; P100,000.00 as moral damages; P50,000.00 as death
indemnity; P10,000.00 as [attorney's fees] paid to their private prosecutor and P2,400,000.00 as loss in
the earning capacity of the deceased without subsidiary imprisonment in case of insolvency.

Taking into consideration that accused Francisca Talaro is already 75 years old, the death penalty meted
upon her shall be commuted to reclusion perpetua with the accessory penalties provided in Article 40 of
the Revised Penal Code.

And considering that the evidence adduced by the prosecution against the accused Gregorio Talaro is not
sufficient to sustain his conviction of the offense filed against him, the court hereby declares accused
Gregorio Talaro not guilty. The court likewise declares Raymundo Zamora acquitted of the offense filed
against him.

Let an order of arrest be issued against accused Renato Ramos who escaped from jail during the
pendency of this case, to be served by the NBI, CIC and PNP of Urdaneta, Pangasinan.

SO ORDERED.16

The case was then brought to this Court for automatic review in view of the penalty of death imposed on
accused-appellants. However, in accordance with the ruling in People v. Mateo,17 and the amendments
made to Sections 3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of Rule 125 of the Revised
Rules on Criminal Procedure, the Court transferred this case to the CA for intermediate review.

On December 15, 2005, the CA rendered its Decision, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 38 of Lingayen,
Pangasinan in Criminal Case No. U-8239, is hereby AFFIRMED with the MODIFICATION that accused-
appellant Rodolfo Duzon is ACQUITTED on reasonable doubt and his release is hereby ordered unless
he is being held for some other legal cause.

Further, in lieu of the awards made by the trial court in favor of the heirs of deceased Atty. Melvin Alipio,
accused-appellants are ordered to pay, jointly and severally, the heirs of the victim the following amounts:
(1) P25,000.00 as temperate damages; (2) P75,000.00 as civil indemnity; (3) P50,000.00 as moral
damages; and (4) P25,000.00 as exemplary damages;

SO ORDERED.18

The case is now before this Court on automatic review. The prosecution opted not to file a supplemental
brief with this Court. Accused-appellants Lolito Aquino and Renato Ramos jointly filed their supplemental
brief where it is argued that the two should be acquitted because (1) the prosecution evidence is
insufficient to prove that Lolito Aquino was part of the conspiracy to kill Atty. Melvin Alipio; and (2) the
identity of Renato Ramos was never established. Accused-appellant Noberto (Jun) Adviento argued in his
Appellant's Brief filed with the CA, that the prosecution's evidence is insufficient to establish conspiracy,
and there are no aggravating circumstances to justify the imposition of the death penalty.

The Court agrees with the CA's conclusion that the evidence on record proves beyond reasonable doubt
that accused-appellants Lolito Aquino, Renato Ramos, and Norberto (Jun) Adviento, together with
Francisca Talaro, conspired to kill Atty. Melvin Alipio.

Murder under Article 248 of the Revised Penal Code is defined as the unlawful killing of a person, which is
not parricide or infanticide, attended by circumstances such as treachery or evident premeditation. The
presence of any one of the circumstances enumerated in Article 248 of the Code is sufficient to qualify a
killing as murder.19

In People v. Sanchez,20 the Court held that "[t]he essence of treachery is the sudden attack by an
aggressor without the slightest provocation on the part of the victim, depriving the latter of any real chance
to defend himself, thereby ensuring the commission of the crime without risk to the aggressor." There can
be no cavil that the evidence on record shows treachery in the killing of Atty. Alipio, thus qualifying the
crime as murder. The assailant, identified as accused-appellant Renato Ramos, just suddenly fired upon
Atty. Alipio at a very close distance, without any provocation from said unarmed victim, who was then just
conversing with some other people.

There is also evident premeditation because the evidence shows that a couple of days before the actual
shooting of Atty. Alipio, Raymundo Zamora already saw and heard accused-appellants Norberto (Jun)
Adviento, Renato Ramos, and Lolito Aquino, talking to Francisca Talaro and coming to an agreement to
kill Atty. Alipio.

Pitted against the prosecution evidence, accused-appellants' only defense is that the evidence is
insufficient to prove they are part of the conspiracy to commit the murder. Said defense is sorely wanting
when pitted against the prosecution evidence.

In People v. Bautista,21 the Court reiterated the hornbook principle of conspiracy, to wit:

Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Where all the accused acted in concert at the time of the
commission of the offense, and it is shown by such acts that they had the same purpose or common
design and were united in its execution, conspiracy is sufficiently established. It must be shown that all
participants performed specific acts which such closeness and coordination as to indicate a common
purpose or design to commit the felony.

xxxx

Each conspirator is responsible for everything done by his confederates which follows incidentally in
the execution of a common design as one of its probable and natural consequences even though it was
not intended as part of the original design. x x x22 (Emphasis supplied)

In this case, the existence of a conspiracy has been established by the testimony of Raymundo Zamora,
positively identifying all three accused-appellants as the ones he saw and heard transacting with
Francisca Talaro on April 24, 1994 to kill Atty. Melvin Alipio for the price of P60,000.00, and pointing to
Lolito Aquino as the one who demanded and received part of the payment after Atty. Alipio had been
killed. The credibility of Raymundo Zamora's testimony is further bolstered by Lolito Aquino's
admission23 that he and Renato Ramos even conducted surveillance on the victim a day before Renato
Ramos carried out the shooting, and that the motorcycle used as a getaway vehicle belonged to him.
Rodolfo Duzon also pointed to Renato Ramos as the gunman; he also pointed to Renato Ramos and
Norberto (Jun) Adviento as the ones who threatened to kill him if he talks to anyone about the shooting.
All the proven circumstances point to the conclusion that accused-appellants acted in concert to assure
the success of the execution of the crime; hence, the existence of a conspiracy is firmly established.

Lolito Aquino's admission, and accused-appellants' positive identification of Raymundo Zamora and
Rodolfo Duzon cannot be belied by accused-appellants' mere denial. It is established jurisprudence that
denial and alibi cannot prevail over the witness' positive identification of the accused-
appellants.24 Moreover, accused-appellants could not give any plausible reason why Raymundo Zamora
would testify falsely against them. In People v. Molina,25 the Court expounded, thus:
In light of the positive identification of appellant by the prosecution witnesses and since no ill
motive on their part or on that of their families was shown that could have made either of them
institute the case against the appellant and falsely implicate him in a serious crime he did not
commit, appellant's defense of alibi must necessarily fail. It is settled in this jurisdiction that the
defense of alibi, being inherently weak, cannot prevail over the clear and positive identification of the
accused as the perpetrator of the crime. x x x26(Emphasis supplied)

Accused-appellant Lolito Aquino claimed he merely admitted his participation in the crime out of fear of
the police authorities who allegedly manhandled him, however, the trial court did not find his story
convincing. The trial court's evaluation of the credibility of witnesses and their testimonies is conclusive on
this Court as it is the trial court which had the opportunity to closely observe the demeanor of
witnesses.27 The Court again explained the rationale for this principle in Molina,28 to wit:

As oft repeated by this Court, the trial court's evaluation of the credibility of witnesses is viewed as correct
and entitled to the highest respect because it is more competent to so conclude, having had the
opportunity to observe the witnesses' demeanor and deportment on the stand, and the manner in which
they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling
the truth, being in the ideal position to weigh conflicting testimonies. Further, factual findings of the trial
court as regards its assessment of the witnesses' credibility are entitled to great weight and respect by this
Court, particularly when the Court of Appeals affirms the said findings, and will not be disturbed absent
any showing that the trial court overlooked certain facts and circumstances which could substantially
affect the outcome of the case.29

The Court cannot find anything on record to justify deviation from said rule.

Accused-appellant Renato Ramos insisted that he was not properly identified in open court, and
considering that there are so many persons named "Renato Ramos," then there can be some confusion
regarding his identity. There is no truth to this claim. Ramos was properly identified in open court by
Raymundo Zamora, as one of the men he saw and heard transacting with Francisca Talaro for the killing
of Atty. Alipio.30 Hence, there can be no doubt as to which Renato Ramos is being convicted for the
murder of Atty. Alipio.

Another strong indication of Lolito Aquino's and Renato Ramos' guilt is the fact that they escaped from
detention while the case was pending with the trial court. Renato Ramos escaped from prison on
December 20, 1994,31while Lolito Aquino escaped on May 5, 1996.32 It has been repeatedly held that flight
betrays a desire to evade responsibility and is, therefore, a strong indication of guilt. 33 Thus, this Court
finds no reason to overturn their conviction.

Nevertheless, this Court must modify the penalty imposed on accused-appellants Norberto (Jun)
Adviento, Lolito Aquino, and Renato Ramos. In People v. Tinsay,34 the Court explained that:

On June 30, 2006, Republic Act No. 9346 (R.A. 9346), entitled An Act Prohibiting the Imposition of Death
Penalty in the Philippines, took effect. Pertinent provisions thereof provide as follows:

Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight
Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death
by Lethal Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A.
No. 7659) otherwise known as the Death Penalty Law and all other laws, executive orders and decrees
insofar as they impose the death penalty are hereby repealed or amended accordingly.

Section 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or

xxxx

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence Law, as amended.

It has also been held in People vs. Quiachon that R.A. No. 9346 has retroactive effect, to wit:
The aforequoted provision of R.A. No. 9346 is applicable in this case pursuant to the principle in criminal
law, favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to accused are given
retroactive effect. This principle is embodied under Article 22 of the Revised Penal Code, which provides
as follows:

Retroactive effect of penal laws. - Penal laws shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws, a final sentence has been pronounced and
the convict is serving the same.1wphi 1

However, appellant is not eligible for parole because Section 3 of R.A. No. 9346 provides that "persons
convicted of offenses pushed with reclusion perpetua, or whose sentences will be reduced to reclusion
perpetua by reason of the law, shall not be eligible for parole."

Hence, in accordance with the foregoing, appellant should only be sentenced to suffer reclusion
perpetua without eligibility for parole.35

The awards for damages also need to be modified. In People v. Alberto Anticamara y Cabillo, et al.,36 the
Court held that in accordance with prevailing jurisprudence on heinous crimes where the imposable
penalty is death but reduced to reclusion perpetua pursuant to R.A. No. 9346, the award of moral
damages should be increased from P50,000.00 to P75,000.00, while the award for exemplary damages,
in view of the presence of aggravating circumstances, should be P30,000.00.

WHEREFORE, the Decision of the Court of Appeals dated December 15, 2005 in CA-G.R. CR-H.C. No.
00071 is hereby AFFIRMED with the MODIFICATION that the penalty of death imposed on accused-
appellants is REDUCED to reclusion perpetua without possibility of parole in accordance with R.A. No.
9346; and INCREASING the award of moral damages from P50,000.00 to P75,000.00, and the award of
exemplary damages from P25,000.00 to P30,000.00. The rest of the award of the Court of Appeals is
hereby maintained.

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S.

YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF
THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

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

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L.

ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.

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

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National

Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice
President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL
A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE
LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as
Secretary of the Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all of the Executive
Department of Government), Respondents.

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

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE

(PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION
TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

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

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD
C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA;
GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL
O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC.
PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his
capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R.
ROJAS, in his capacity as Director, National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

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

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of
the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary;
HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director, Information and Communications
Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the
National Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National Police, Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE

FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented
by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR.,
LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE
EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD
OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer,
a person can connect to the internet, a system that links him to other computers and enable him, among
other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research,
study, amusement, upliftment, or pure curiosity;
 2. Post billboard-like notices or messages, including pictures and videos, for the general public or
for special audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system since it
could not filter out a number of persons of ill will who would want to use cyberspace technology for
mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him that people can
read.

And because linking with the internet opens up a user to communications from others, the ill-motivated
can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account
or credit card or defrauding him through false representations. The wicked can use the cyberspace, too,
for illicit trafficking in sex or for exposing to pornography guileless children who have access to the
internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs, and memories. The
government certainly has the duty and the right to prevent these tomfooleries from happening and punish
their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks
on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would enable
the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

 j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICCs Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this
standard, a legislative classification that impermissibly interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to achieve a compelling state interest
and that it is the least restrictive means to protect such interest. 2 Later, the strict scrutiny standard was
used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal protection. 3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a
condemnable act accessing the computer system of another without right. It is a universally condemned
conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target systems security and report back to the owners the
vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are
the equivalent of independent auditors who come into an organization to verify its bookkeeping records. 5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the extent
of the search, the methods to be used, and the systems to be tested. This is referred to as the "get out of
jail free card."6Since the ethical hacker does his job with prior permission from the client, such permission
would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the introduction
or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading
the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply
punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things that
belong to others, in this case their computer data, electronic document, or electronic data message. Such
act has no connection to guaranteed freedoms. There is no freedom to destroy other peoples computer
systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or
the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill
such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a
personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not
being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would punish for
cyber-squatting both the person who registers such name because he claims it to be his pseudo-name
and another who registers the name because it happens to be his real name. Petitioners claim that,
considering the substantial distinction between the two, the law should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use
it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law
is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.
The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical, without
right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1) degree
lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of
the right protected by the guarantee against unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by unreasonable government
intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related
identity theft violates the right to privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the
specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire anothers personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account of a person in the news to secure information
about him that could be published. But this is not the essence of identity theft that the law seeks to prohibit
and punish. Evidently, the theft of identity information must be intended for an illegitimate purpose.
Moreover, acquiring and disseminating information made public by the user himself cannot be regarded
as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex. 24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam. 25

The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in prostitution
or pornography."26 The law defines prostitution as any act, transaction, scheme, or design involving the
use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no
other purpose than satisfy the market for violence, lust, or pornography. 29 The Court weighed the property
rights of individuals against the public welfare. Private property, if containing pornographic materials, may
be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery
and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly
or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system
as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to
cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system. Actually,
ACPAs definition of child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace.
But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece of
child pornography when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who
aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who
merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for
producing child pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication
with the use of computer system which seeks to advertise, sell, or offer for sale products and services are
prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements
from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for
the recipient to reject receipt of further commercial electronic messages (opt-out) from the
same source;

(bb) The commercial electronic communication does not purposely disguise the source of
the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a "spam." The term referred to a Monty Pythons
Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass to ones privacy since the
person sending out spams enters the recipients domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already been
receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might
have interest in such ads. What matters is that the recipient has the option of not opening or reading these
mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which
is not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate
forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4)
of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
 1. A private communication made by any person to another in the performance of any legal, moral
or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions.

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be devised in
the future.

Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest jurisprudence
already replaces it with the higher standard of "actual malice" as a basis for conviction.38 Petitioners argue
that inferring "presumed malice" from the accuseds defamatory statement by virtue of Article 354 of the
penal code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned as
the Court has done in Fermin v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard
standard used here requires a high degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross or even extreme negligence is not sufficient to establish actual malice. 43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a public figure. Societys interest and the
maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in
the above case, cinema and television personalities, when it modified the penalty of imprisonment to just
a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
countrys obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out
that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC)
cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition
that the accused has been prompted in making the statement by good motives and for justifiable ends.
Thus:

Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to
the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published
with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related
to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it.
In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code
provisions on libel were enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they
are a world apart in terms of quickness of the readers reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet users. Whether these reactions
to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of
the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of
the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. The following acts shall also constitute an offense:
 (a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in
the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any
of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It
suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves
of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate the
meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing the
law.51 The legislature is not required to define every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in
the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users. 55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking sites build social
relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an
open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on
Facebook, which can be made visible to anyone, depending on the users privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the programs screen
such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same, such as "This is great!" When a
Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital contentwhich could be in the
form of text, pictures, links, short videos, or other mediaon the internet. Instead of friends, a Twitter user
has "Followers," those who subscribe to this particular users posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting
or republishing another persons tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog
service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet caf that may have provided the computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a link to the blog site. 60 Now, suppose Maria
(a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access
her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this
is so true! They are so immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria
and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nenas "Followers" then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts
this on her Facebook account. Immediately, Pamelas Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on
it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor
places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did
not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when
applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the millions that use this new
medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a
case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of
an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of
speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of
special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness
of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on
free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage
of the statute, it unquestionably silences some speakers whose messages would be entitled to
constitutional protection. That danger provides further reason for insisting that the statute not be overly
broad. The CDAs burden on protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a persons reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users
will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of
facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad
sweep that generates chilling effect on those who express themselves through cyberspace posts,
comments, and other messages.64Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-
for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must
view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount facial challenges to
penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on
the violation of the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime under
an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In
this case, the particularly complex web of interaction on social media websites would give law enforcers
such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking
it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether or not one netizens comment aided
and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new
defamatory story against Armand like "He beats his wife and children," then that should be considered an
original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacksthe exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography?
When a user downloads the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third parties and unsolicited
commercial communication could be disseminated on the basis of this information. 70 As the source of this
information, is the user aiding the distribution of this communication? The legislature needs to address
this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially since
the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to
apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable.
A hacker may for instance have done all that is necessary to illegally access another partys computer
system but the security employed by the systems lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt
to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as
well as the actors aiding and abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of
course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be covered
by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree
higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through
the use of information and communications technology and similar crimes committed using other means.
In using the technology in question, the offender often evades identification and is able to reach far more
victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution
of the other although both offenses arise from the same fact, if each crime involves some important act
which is not an essential element of the other.74 With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the determination of the correct application of Section 7 to
actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate
libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation
of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws would be a blatant violation of the
proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs
scope so as to include identical activities in cyberspace. As previously discussed, ACPAs definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred
thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or
both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of
2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is
not diluted or improperly wielded simply because at some prior time the act or omission was but an
element of another offense or might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.

Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type
of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and
the examination under oath or affirmation of the applicant and the witnesses he may produce and the
showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2) that there are reasonable
grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to
the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data
showing where digital messages come from, what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the messages or
information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law, 79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn. 80 In assessing regulations affecting privacy
rights, courts should balance the legitimate concerns of the State against constitutional guarantees. 81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put
order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of
reason that the government should be able to monitor traffic data to enhance its ability to combat all sorts
of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and investigating
crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno
points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative
measures to empower state authorities to collect or record "traffic data, in real time, associated with
specified communications."83 And this is precisely what Section 12 does. It empowers law enforcement
agencies in this country to collect or record such data.

But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently,
it is not. Those who commit the crimes of accessing a computer system without right, 84 transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration;86 and producing
child pornography87 could easily evade detection and prosecution by simply moving the physical location
of their computers or laptops from day to day. In this digital age, the wicked can commit cybercrimes from
virtually anywhere: from internet cafs, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and
with unregistered SIM cards do not have listed addresses and can neither be located nor identified. There
are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography
could use relays of computers to mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the peoples right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter rightthe right to informational privacythat those
who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to
live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right
to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming the
right must have an actual or legitimate expectation of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular
person or group, petitioners challenge to Section 12 applies to all information and communications
technology (ICT) users, meaning the large segment of the population who use all sorts of electronic
devices to communicate with one another. Consequently, the expectation of privacy is to be measured
from the general publics point of view. Without reasonable expectation of privacy, the right to it would
have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing it
closed, and sending it through the postal service. Those who post letters have no expectations that no
one will read the information appearing outside the envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet fits together with other packets. 93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the actual names and
addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced back
together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service providers
communications system will put his voice message into packets and send them to the other persons
cellphone where they are refitted together and heard. The latters spoken reply is sent to the caller in the
same way. To be connected by the service provider, the sender reveals his cellphone number to the
service provider when he puts his call through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the 70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain traffic
data that are needed for a successful cyberspace communication. The conveyance of this data takes
them out of the private sphere, making the expectation to privacy in regard to them an expectation that
society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then
be used to create profiles of the persons under surveillance. With enough traffic data, analysts may be
able to determine a persons close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law
provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of the
police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning
of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime
law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The
Solicitor General suggests that "due cause" should mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to
relate the collection of data to the probable commission of a particular crime. It just says, "with due
cause," thus justifying a general gathering of data. It is akin to the use of a general search warrant that the
Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to
build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it
says that traffic data collection should not disclose identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains. This will unnecessarily
expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these
agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that would authorize the search of what is akin to a
"moving vehicle." But warrantless search is associated with a police officers determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section
12 is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses. 95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even
impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society."96 The Court must ensure that laws seeking
to take advantage of these technologies be written with specificity and definiteness as to ensure respect
for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating
to communication services provided by a service provider shall be preserved for a minimum period of six
(6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months
from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case,
the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property.
They liken the data preservation order that law enforcement authorities are to issue as a form of
garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has
an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction and
those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of the
same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscribers
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and
the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate
the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer
and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data therein
to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure
and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the
rights of the person from whom they were taken. Section 15 does not appear to supersede existing search
and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear
up the service providers storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the users right against deprivation of property without due process of law. But, as already stated,
it is unclear that the user has a demandable right to require the service provider to have that copy of the
data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved
them in his computer when he generated the data or received it. He could also request the service
provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from unreasonable
searches and seizures, whether while stored in their personal computers or in the service providers
systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer data
under its control and disposition without a warrant. The Department of Justice order cannot substitute for
judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected.
Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an
executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough
for him to be of the opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule. 101 Section 19, however, merely requires
that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does
not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829
with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement
authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure
to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance
would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates
or delays the apprehension of suspects and the investigation and prosecution of criminal cases by
committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.

Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission
of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without
any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete
in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the
only thing he will have to do is to enforce it. The second test mandates adequate guidelines or limitations
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in the law to determine the boundaries of the delegates authority and prevent the delegation from running
riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and users assets.104 This definition serves as the parameters within which CICC should work
in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block
access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet
in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for six
months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a
court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICCs Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

 1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA
L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2)
on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and
4(c)(4) on online Libel.
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Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7
that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double
jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.

SO ORDERED.