Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 117487 December 12, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.:

The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to
play the role of an infallible God by exercising the divine right to give or take away life. We cannot err
in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the
worst of crimes — murder by the judiciary.

The records reveal that appellant Arnel Alicando was charged with the crime of rape with
homicide1 in an Information which reads:

That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within
the jurisdiction of this Court, said accused, did then and there willfully, unlawfully and
feloniously and by means of force, violence and intimidation to wit: by then and there
pinning down one KHAZIE MAE PENECILLA, a minor, four years of age, choking her
with his right hand, succeeded in having carnal knowledge with her and as a result
thereof she suffered asphyxia by strangulation fractured cervical vertebra and
lacerations of the vaginal and rectal openings causing profuse hemorrhages and
other injuries which are necessarily fatal and which were the direct cause of her
death.

CONTRARY TO LAW.

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the
PAO, Department of Justice. Appellant pleaded guilty.

After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also
set the case for reception of evidence for the appellant, if he so desired.2

The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of
the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in
his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every
now and then would take leave and return. Appellant was living in his uncle's house some five (5)
arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length
from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the window of
appellant's house. She offered to buy her "yemas" but appellant closed the window. Soon she heard
the victim crying. She approached appellant's house and peeped through an opening between its
floor and door. The sight shocked her appellant was naked, on top of the victim, his left hand
choking her neck. She retreated to her house in fright. She gathered her children together and
informed her compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also
overcome with fear and hastily left.

Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He
and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was
aware that the Penecillas were looking for their daughter but did not tell them what she knew.
Instead, Relada called out appellant from her window and asked him the time Khazie Mae left his
house. Appellant replied he was drunk and did not know.

As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to
answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her
parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of heart. She
informed Romeo Penecilla and his wife Julie Ann, that appellant committed the crime. Forthwith,
appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without
the assistance of counsel. On the basis of his uncounselled verbal confession and follow up
interrogations, the police came to know and recovered from appellant's house, Khazie Mae's green
slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained T-shirt all of which were
presented as evidence for the prosecution.

The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy
report reveals the following injuries sustained by the victim:

HEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right anterior neck,
down to the medial portion of the left and right infraclavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right antero- inferior
chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac crest.

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

 EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,

left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum..

b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION.

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.

Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the
proximate cause of Khazie Mae's death was asphyxia by strangulation.

On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz:

WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond
reasonable doubt for (sic) the Crime of Rape with Homicide penalized under Article
335 of the Revised Penal Code as amended by paragraphs 6 and 7 (No. 4) Section
11 of Republic Act No. 7659. Arnel Alicando is hereby sentenced to suffer a (sic)
penalty of death and to indemnify the heirs of the offended party, Khazie Mae D.
Penecilla, the sum of P50,000.00.

The death sentence shall be executed by putting the person under sentence to death
by electrocution (electric chair). As soon as facilities are provided by the Bureau of
Prisons, the method of carrying out his sentence shall be changed by gas poisoning
(sic).
 Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the grievous
offense he had committed. He deserves no mercy.

Cost against the accused.

SO ORDERED.

The case is before us on automatic review considering the death penalty imposed by the trial court.
A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the
decision of the trial court as a travesty of justice.

We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both
substantive and procedural. The conviction is on an amalgam of inadmissible and incredible
evidence and supported by scoliotic logic.

First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a)
— of Rule 116 on arraignment. Said section provides:

xxx xxx xxx

Sec. 1. Arraignment and plea; how made. —

(a) The accused must be arraigned before the court where the complaint or
information has been filed or assigned for trial. The arraignment must be made in
open court by the judge or clerk by furnishing the accused a copy of the complaint or
information with the list of witnesses, reading the same in the language or dialect
known to him and asking him whether he pleads guilty or not guilty. The prosecutor
may, however, call at the trial witnesses other than those named in the complaint or
information.

The reading of the complaint or information to the appellant in the language or dialect known
to him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It
implements the constitutional right of an appellant ". . . to be informed of the nature and
cause of the accusation against him."3 The new rule also responds to the reality that the
Philippines is a country divided by dialects and Pilipino as a national language is still in the
process of evolution.4 Judicial notice can be taken of the fact that many Filipinos have limited
understanding either of the Pilipino or English language, our official languages for purposes
of communication and instruction. 5 The importance of reading the complaint or information to
the appellant in the language or dialect known to him cannot thus be understated.

In the case at bar, the records do not reveal that the Information against the appellant was read in
the language or dialect known to him. The Information against the appellant is written in the English
language. It is unbeknown whether the appellant knows the English language. Neither is it known
what dialect is understood by the appellant. Nor is there any showing that the Information couched in
English was translated to the appellant in his own dialect before his plea of guilt. The scanty
transcript during his arraignment, reads:6

xxx xxx xxx

Prosecutor Edwin Fama — Appearing as public prosecutor

 Atty. Rogelio Antiquiera — For the accused, Your Honor. Ready for arraignment.

Interpreter — (Reading the information to the accused for arraignment and pre-trial.)

Note: (After reading the information to the accused, accused pleads guilty)

One need not draw a picture to show that the arraignment of the appellant is a nullity. It
violated section 1(a) of Rule 116, the rule implementing the constitutional right of the
appellant to be informed of the nature and cause of the accusation against him. It also
denied appellant his constitutional right to due process of law.7 It is urged that we must
presume that the arraignment of the appellant was regularly conducted. When life is at stake,
we cannot lean on this rebuttable presumption. We cannot assume. We must be sure.

Second. The plea of guilt made by the appellant is likewise null and void. The trial court violated
section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section provides:

Sec. 3. Plea of guilty to capital offense; reception of evidence.—

When the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the consequences
of his plea and require the prosecution to prove his guilt and the precise degree of
culpability. The accused may also present evidence in his behalf.

The records reveal how the trial judge inadequately discharged this duty of conducting a
"searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following:8

Note (After reading the information to the accused,

accused pleads guilty.)

Court Question (sic) of the court to the accused.

Q Considering that this is a crime and under the

amended law is a heinous crime, because of your
plea of guilty without the consent or even against the
discretion of the court, the court will give you a
mandatory death penalty because of the crime
charged, do you understand?

Accused Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary

will or without any force or intimidation from any one
or whatever?

Accused None, Your Honor.

Q Are you sure?

Accused Yes, Your Honor.

 Q Or maybe because you were manhandled or
maltreated by anyone and that will just be the
consideration for you to plead guilty?

Accused No, Your Honor.

Court Were you not manhandled, please let us see

your body?

Note (Accused raised his prison uniform or shirt and

showed to the court his body from waist up.)

Accused No, Your Honor.

Court You were not maltreated in the jail?

Accused No, Your Honor.

Court Please let us see whether you have bruises so

that you will be examined by a physician to the order
of the court?

Accused No, Your Honor.

Court If you will plead guilty, that plea of guilty has no

use because there will be a mandatory death penalty,
do you still insist on your plea of guilty?

Accused Yes, Your Honor.

Court If you plead guilty to the crime charged there

will be some effects on your civil rights hut not until
the decision will be affirmed by the Supreme Court.

Accused Yes, Your Honor.

Note (See Order dated June 28, 1994 attached to the

records of this case.)

In the next hearing on July 11, 1994, the following verbal exchange transpired, viz:9

xxx xxx xxx

Fiscal Fama: Appearing as the public prosecutor,

ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera: For the accused, Your Honor.

 Court Before the court will proceed with the reception
of evidence by the prosecution Arnel Alicando, please
come here. (at this juncture, Arnel Alicando, come
near to the court)

The court is warning you again that this is reception of

evidence by the prosecution after you plead guilty to
the crime charged at, do you understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty

of rape with homicide?

A Yes, Your Honor.

Q Do you still insist that your plea of guilty is voluntary

without force, intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of

evidence, the imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist on your plea of

guilty?

A Yes, Your Honor.

Court Okey, proceed.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the
decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of cases. 11 The
bottom line of the rule is that the plea of guilt must be based on a free and informed judgment. Thus,
the searching inquiry of the trial court must be focused on: (1) the voluntariness of the plea, and (2)
the full comprehension of the consequences of the plea. The questions of the trial court failed to
show the voluntariness of the plea of guilt of the appellant nor did the questions demonstrate
appellant's full comprehension of the consequences of his plea. The records do not reveal any
information about the personality profile of the appellant which can serve as a trustworthy index of
his capacity to give a free and informed plea of guilt. The age, socio-economic status, and
educational background of the appellant were not plumbed by the trial court. The questions were
framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will
be noted too that the trial court did not bother to explain to the appellant the essential elements of
the crime of rape with homicide.

A cursory examination of the questions of the trial court to establish the voluntariness of appellant's
plea of guilt will show their utter insufficiency. The trial court simply inquired if appellant had physical
marks of maltreatment. It did not ask the appellant when he was arrested, who arrested him, how
and where he was interrogated, whether he was medically examined before and after his
interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the
following damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing
that after his arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma,
viz:

c-0262-94

INFORMATION

2:50 PM, — P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC,
informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this date
when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of Rizal,
Palapala Zone I, CP, been arrested and mobbed by the irrate residents of Zone II
Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the
victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place
who was discovered dead under the house thereat. Suspect when turned over to this
office and put on lock up cell was also mobbed by the angry inmates thus causing
upon him hematoma contusion on different parts of his body.

Likewise, the trial court's effort to determine whether appellant had full comprehension of the
consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory death
penalty without explaining the meaning of "mandatory" It did not inform the appellant of the indemnity
he has to pay for the death of the victim. It cautioned appellant there ". . . will be some effects on
your civil rights" without telling the appellant what those "effects" are and what "civil rights" of his are
involved.

Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We
stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot rest
alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of guilt,
the trial court must require the prosecution to prove the guilt of the appellant and the precise degree
of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt
even in capital offenses is sufficient to sustain a conviction charged in the information without need
of further proof. The change is salutary for it enhances one of the goals of the criminal process which
is to minimize erroneous conviction. We share the stance that "it is a fundamental value
determination of our system that it is far worse to convict an innocent person than let a guilty man go
free. 12

Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet, were considered by the trial court in convicting the appellant.

Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution.
To quote its Decision, 13 viz:

xxx xxx xxx

Further, there are physical evidence to prove Khazie was raped. These consists of a
pillow with bloodstains in its center14 and the T-shirt 15 of the accused colored white
with bloodstains on its bottom. These physical evidence are evidence of the highest
order. They strongly corroborate the testimony of Luisa Rebada that the victim was
raped.
These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City
PNP as a result of custodial interrogation where appellant verbally confessed to the crime
without the benefit of counsel. PO3 Tan admitted under cross-examination, viz: 16

xxx xxx xxx

CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:

Q Mr. Witness, when for the first time did you see
Arnel Alicando?

A June 13, 1994, when I arrested him.

Q Previous to that you have never seen him?

A Yes, sir.

Q When for the first time did you start investigating

Arnel Alicando?

A After I finished investigating the body of the victim,

Khazie Mae Penecilla.

Q And that was also after you were informed that

Arnel Alicando was a suspect in the raping of Khazie
Mae Penecilla?

A Yes, sir

Atty. Antiquiera:

Q And who was that person who informed you of the

suspect?

A Luisa Rebada.

Q Mrs. Rebada who is the witness in this case?

A Yes, sir.

Q And you started investigating Arnel Alicando in the

morning of June 13, 1994?

A Yes, sir.

Q How long did you interrogate Arnel Alicando in the

morning of June 13, 1994?
A I cannot remember the length of time I investigated
him.

Q Did it take you the whole morning of June 13, 1994

in interrogating and investigating Arnel Alicando?

A Yes, sir.

Q And the investigation you conducted continued in

the afternoon of the same date?

A Yes, sir.

Q The following day, June 14, 1994, you still

investigated and interrogated Arnel Alicando.

A Yes, sir.

Q And when did you stop, finally, investigating and

interrogating Arnel Alicando?

A After I finished recovering all the exhibits in relation

to this case.

Q What date did you stop your investigation?

A June 14, 1994, when I finished recovering the white

T-shirt and pair of earring.

Atty. Antiquiera:

Q You testified in this case, Mr. Witness, you never

informed the court that you apprised the accused of
his constitutional rights, is that correct?

A I apprised him.

Q My question is, during your testimony before this

court under the direct examination of the prosecution
you never informed the court that you apprised the
accused of his constitutional rights?

Pros. Fama:

I did not ask him that question. How will he answer?

Court:

Sustained.
 Atty. Antiquiera:

Q When did you inform, the date when you informed

Alicando of his Constitutional rights?

A On June 13.

Q On what hour did you inform him?

A After the witness identified him.

Q What constitutional rights did you inform Alicando

of?

A The right to remain silent, and right to get his lawyer

and I have interpreted in Visayan language.

Q And during your investigation for almost two (2)

days the accused was never represented by counsel,
is that correct?

A Yes, sir.

Atty. Antiquiera:

Q Are you aware of the law that enjoins a public

officer to inform the person of his constitutional rights?

A Yes, sir.

That is all, Your Honor.

It is now familiar learning that the Constitution has stigmatized

as inadmissible evidence uncounselledconfession or admission. Section 12 paragraphs (1)
and (3) of Article III of the Constitution provides:

xxx xxx xxx

Sec. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible against him.
In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important
confession of the appellant in writing. Neither did he present any writing showing that appellant
waived his right to silence and to have competent and independent counsel despite the blatant
violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow
into the records and illicitly used it in sentencing him to death.

It is not only the uncounselled confession that is condemned as inadmissible, but also evidence
derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence derived
from the uncounselled confession illegally extracted by the police from the appellant. Again, the
testimony of PO3 Tan makes this all clear, viz: 17

xxx xxx xxx

Q Did the accused Arnel Alicando accompany you to the place of the
incident?

A Yes, sir.

Q When you arrived at the place of the incident what did you do?

A He pointed to the fish basin.

Q Can you identify this fish basin which you said pointed to you by
Arnel Alicando?

A Yes, sir.

Q Please point?

A (Witness pointing to the fish basin already marked as Exhibit "H".)

Q Did you ask the accused what he did with this fish basin?

A I asked the accused what he did with the fish basin and he
answered that he used the fish basin to cover Khazie Mae Penecilla
when she was already dead.

Pros. Fama:

Q You mean to say to conceal the crime?

A Yes, sir.

Q What else aside from this fish basin, what else did you recover?

A At around 7 o'clock in the evening he further pointed to us the old

mat and the pillowwherein he layed the victim Khazie Mae Penecilla

Q You mean to say that you returned back to the scene of the
incident that time?
A It was already night time and it was only Kagawad Rodolfo Ignacio,
my companion, who went to the place of the incident.

Q You mean to say you were verbally instructed by the accused?

A Yes, sir.

Q In what particular place did you recover those things?

A Inside the room where he raped the child.

Q Whose house is that?

A The house of Imelda Alicando.

Q The wife of Romeo Alicando?

A Yes, sir.

Q In what particular place is that situated?

A Inside the room where the accused was sleeping at Rizal-Palapala.

Pros. Fama:

Q You mean to say inside that room the victim was raped by the
accused?

A Yes, sir.

Q Can you point that pillow which you said you recovered inside the
room of Imelda Alicando?

A Yes, sir.

Q And the mat?

A (Witness taking out from the fish basin the mat and pillow.)

Q Did you find something on the pillow?

A The pillow have bloodstain in the middle.

. . This was already marked as Exhibit "J", Your Honor and the mat
as Exhibit "I".

Q Aside from this what did you recover from the place of incident?

A On June 14, 1994, at about 10:00 o'clock in the morning the

accused Arnel Alicando further informed me that he kept the gold
 earring of the victim and her clothes inside the room of the house of
Imelda Alicando.

Q Where?

A I saw the clothes of Khazie Mae Penecilla inside the room where
the rape took place hanged on the clothes line. And I found the pair of
earring at the bamboo post of the fence.

Court:

Q Where is that bamboo post of the fence situated?

A Around the fence of Imelda Alicando situated at the from gate on

the right side.

Pros. Fama:

Q You mean to say you returned back on June 14, you recovered the
items accompanied by the accused?

A No more, I only followed his direction.

Q He made verbal direction to you?

A Yes, sir.

Q Can you please show us the white t-shirt?

A (Witness taking out a white t-shirt from the fish basin.)

Q Please examine that white t-shirt?

A The t-shirt have a bloodstain.

We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also
adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase
minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United
States. 18 According to this rule, once the primary source (the "tree") is shown to have been
unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also
inadmissible. 19 Stated otherwise, illegally seized evidence is obtained as a direct result of the
illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal
act. The "fruit of the poisonous tree" is at least once removed from the illegally seized
evidence, but it is equally inadmissible. The rule is based on the principle that evidence
illegally obtained by the State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence subsequently obtained. 20 We applied
this exclusionary rule in the recent case of People vs. Salanga, et al., 21a ponencia of Mr.
Justice Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio
lass. He was, however, illegally arrested. Soldiers took him into custody. They gave him a
body search which yielded a lady's underwear. The underwear was later identified as that of
the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear
 allegedly taken from the appellant is inadmissible in evidence, being a so-called "fruit of the
poisonous tree." 22

But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial
court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that the victim
was raped." For one, there was no basis for the trial court to conclude that the stains on the pillow
and t-shirt were human bloodstains. The pillow and the t-shirt were not examined by any expert. To
hold that they were human bloodstains is guesswork. For another, there was no testimony that the
stains were caused by either the blood of the appellant or the victim. In addition, there was no
testimony that the t-shirt was the one worn by the appellant when he allegedly committed the crime.
It must also be noted that it is not unnatural for appellant to have bloodstains on his shirt. He is a
butcher by occupation. Romeo Penecilla himself, the father of the victim, testified he knows the
appellant "because he used to accompany me during butchering of animals." 23

The burden to prove that an accused waived his right to remain silent and the right to counsel before
making a confession under custodial interrogation rests with the prosecution. It is also the burden of
the prosecution to show that the evidence derived from confession is not tainted as "fruit of the
poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1
of Section 12 of Article III of the Constitution provides only one mode of waiver — the waiver must
be in writing and in the presence of counsel. In the case at bar, the records show that the
prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the
appellant failed to make a timely objection to the introduction of these constitutionally proscribed
evidence. The lack of objection did not satisfy the heavy burden of proof that rested on the
prosecution.

There is no and there ought not to be any disagreement on basic principles. The Court should be
concerned with the heinousness of the crime at bar and its despicable perpetration against a 4-year
old girl, an impersonation of innocence itself. The Court should also be concerned with the
multiplication of malevolence in our midst for there is no right to be evil, and there are no ifs and buts
about the imposition of the death penalty as long as it remains unchallenged as part of the laws of
our land. These concerns are permanent, norms hewn in stone, and they transcend the
transitoriness of time.

Be that as it may, our commitment to the criminal justice system is not only to convict and punish
violators of our laws. We are equally committed to the ideal that the process of detection,
apprehension, conviction and incarceration of criminals should be accomplished with fairness, and
without impinging on the dignity of the individual. In a death penalty case, the Court cannot rush to
judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our
escutcheon of justice.

In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural
irregularities committed by, and the inadmissible evidence considered by the trial court. In Binabay
vs. People, et al., 24 ponenciaof Mr. Chief Justice R. Concepcion, this Court held that no valid
judgment can be rendered upon an invalid arraignment. Since in the case at bar, the arraignment of
the appellant is void, his judgment of conviction is also void. In fairness to the appellant, and in
justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is
no philosophy of punishment that allows the State to kill without any semblance of fairness and
justice.

IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando
of the crime of Rape with Homicide and sentencing him to suffer the penalty of death is annulled and
set aside and the case is remanded to the trial court for further proceedings. No costs.
SO ORDERED.

Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco and Panganiban,
JJ., concur.

Separate Opinions

KAPUNAN, J., dissenting:

The civilized mind normally recoils at the idea of taking a man's life by way of retribution for the
commission of a crime. However, every so often, a crime so dastardly and repulsive comes along
that even an individual usually predisposed towards rehabilitating the hard-core criminal would no
longer wish to suffer in silent rage at society's kid-glove treatment of such offender, but would readily
opt to exact a commensurate requital in the form of capital punishment where circumstances so
demand.

Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that setting
absolute outer limits on deviance is a necessary component of group identification and survival.
Justice Oliver Wendell Holmes may have sensed this truth when he wrote, in The Common
Law (1881), "The first requirement of a sound body of law is that it should correspond with the actual
feelings and demands of the community, whether right or wrong (1938 ed:, p. 41)."1

Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and wanton
destruction of property affecting the nation's efforts towards sustainable development and prosperity
while at the same time undermining the people's faith in the Government, Congress enacted
Republic Act 7659,2 imposing capital punishment on certain heinous crimes.

The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at bench
belong to this genre.

A totally innocent child was forever denied the opportunity to enjoy life beyond the age of four by the
gruesome and hideous acts allegedly committed by the appellant who, according to the prosecution,
was not content merely with satisfying his beastly desires on her, but also strangled her to death.
Whether or not the circumstances of the present case require the imposition of the death penalty is
the ultimate issue before us. After a thorough review of the facts and the evidence, I am afraid, I
have to dissent from the majority. The legal evidence available to us overwhelmingly supports the
lower court's conclusions. We should not shirk from our legal duty to impose the death penalty.

I
In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was having a
drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his (Romeo's) house at
Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left, except for the
appellant. Appellant was residing at his uncle's house about five (5) arm's length away from the
Penecilla's house.

When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He and his
wife looked for her until 1:00 in the morning to no avail.

The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering the call
of nature outside his house, he chanced the dead body of Khazi Mae. Immediately, the girl's parents
were informed. The small, lifeless body was brought to their house.

The matter was reported to the police at once. At this point, Luisa Rebada, who lived about 1-1/2
arm's length away from the house of appellant related to the girl's distraught parents what she knew.3

Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the window of
appellant's house. She called out to her and offered to buy "yemas," for her. Appellant suddenly
closed the window. Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity aroused, she
crept two steps up the appellant's house, peeped through an opening between the floor and the
door, and saw appellant naked on top of Khazi Mae, his right hand choking the girl's neck. Rebada
became frightened and went back to her house to gather her children. She told her compadre,
Ricardo Lagranai who was in her house at that time, of what she saw. The latter got nervous and
left. That evening when she heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae left his house. Appellant
replied that he did not know since he was drunk.4 With Luisa Rebada's revelation, appellant was
arrested.

During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and killing
Khazi Mae.5 The police were able to recover from appellant's house Khazi Mae's green slippers, a
pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with a blood stain
in the middle, and a stained T-shirt owned by appellant.

An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:

BEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infra-
clavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left

chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

 5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left
iliac crest.

ON OPENING THE SKULL & THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,

left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum.

b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.6

Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with homicide,
committed as follows:
 That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force, violence and intimidation to wit: by
then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of
age, choking her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured cervical
vertebra and lacerations of the vaginal and rectal openings causing profuse
hemorrhages and other injuries which are necessarily fatal and which were the direct
cause of her death thereafter.

CONTRARY TO LAW.7

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's Office
(PAO), pleaded guilty to the crime charged.

The trial court ordered the prosecution to present evidence to prove the guilt of the accused and the
precise degree of his culpability. It likewise set the case for reception of evidence for the accused, if
he wished to.8

In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal, the
medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police Station; (4)
PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the victim's
father.

The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show that the
proximate cause of death was asphyxia by strangulation.

On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel Alicando.

The case is now before us on automatic review. Disagreeing with the trial court's conviction of the
accused for the crime of Rape with Homicide and the said court's imposition of the death penalty the
Court's majority has decided to overturn the conviction and remand the case to the trial court on the
basis of the following alleged procedural irregularities:

First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and void;

Third, some prosecution evidence, offered independently of the plea of guilt of the appellant, were
inadmissible, yet were considered by the trial court in convicting the appellant.

I strongly disagree.

II

THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING RULES ON

ARRAIGNMENT AND PLEA.

A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.
It is plainly obvious from an examination of the appropriate rules and the record of the case that: 1)
there is absolutely nothing on the record which would warrant a finding the information was not read
in the language or dialect known to the appellant; 2) the rule on arraignment and plea does not
absolutely require that the same be indicated in the record of every criminal case; 3) Rule 116
Section 1 contains nothing requiring trial courts to indicate in the record the fact that the information
was read in the language or dialect known to the defendant, even if the same was in fact actually
complied with by the lower court.

The rule on arraignment, Rule 116 provides the following:

Sec. 1: Arraignment and plea; how made. — (a) The accused must be arraigned
before the court where the complaint or information has been filed or assigned for
trial. The arraignment must be made in open court by the judge or clerk by furnishing
the accused a copy of the complaint or information with the list of witnesses, reading
the same in the language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecution may, however, call at the trial witnesses other
than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his
plea. Both arraignment and plea shall be made of record, but a failure to enter of
record shall not affect the validity of the proceedings.

(c) If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not
guilty shall be entered for him.

xxx xxx xxx

Sec. 3: Plea of guilty to capital offense; reception of evidence. When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and require
the prosecution to prove his guilt and the precise degree of culpability. the accused
may also present evidence in his behalf.

When an accused is arraigned in connection with a criminal charge, it is the duty of the court to
inform him of its nature and cause so that he may be able to comprehend the charges against him
as well as the circumstances attendant thereto. When the charge is of a serious nature, it becomes
the imperative duty of the lawyer present not only to assist the accused during the reading of the
information but also to explain to him the gravity and consequence of his plea.9

Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty. While
justice demands speedy administration, judges are duty bound to be extra solicitous in seeing to it
that when an accused pleads guilty, he fully understands the meaning of his plea and the import of
an inevitable conviction.10

Consequently, three things need to be accomplished after the accused in a criminal case enters a
plea of guilty to a capital offense:

(1) the court should conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the accused's plea;
(2) the lower court should require the prosecution to prove the guilt of the accused and the precise
degree of his culpability; and

(3) the court should inquire whether or not the accused wishes to present evidence on his behalf and
should allow him to do so if he so desires. A judge who fails to observe this requirement commits a
grave abuse of discretion.

These requirements have been complied with in this case, which the following pertinent portions of
the appellant's arraignment, quoted from the record support:

Prosecutor Edwin Fama —

Appearing as public prosecutor.

Atty. Rogelio Antiquiera —

For the accused, Your Honor. Ready for arraignment.

Interpreter:

(Reading the information to the accused for arraignment and pre-

trial.)

Note:

(After reading the information to the accused, accused pleads guilty.)

Court:

Question of the court to the accused.

Q Considering that this is a crime and under the amended law is a

heinous crime, because of your plea of guilty without the consent or
even against the discretion of the court, the court will give you a
mandatory death penalty because of the crime charged, do you
understand that?

Accused:

Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary will or without
any force or intimidation from any one or whatever.

Accused:

None, Your Honor.

Q Are you sure?

Accused:

Yes, Your Honor.

Q Or maybe because you the were manhandled or maltreated by

anyone and that will just be consideration for you to plead guilty?

Accused:

No, Your Honor.

Court:

Were you not manhandled, please let us see your body?

Note:

(Accused raised his prison uniform or shirt and showed to the court
his body from waist up).

Accused:

No, Your Honor.

Court:

You were not maltreated in the jail?

Accused:

No, Your Honor.

Court:

Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Accused:

No, Your Honor.

Court:

If you plead guilty to the crime charged there will be some effects on
your civil rights but not until the decision will be affirmed by the
Supreme Court.

Accused:

Yes, Your Honor. 11

Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:

Appearing as the public prosecutor, ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera:

For the accused, Your Honor.

Court:

Before the court will proceed with the reception of evidence by the
prosecution, Arnel Alicando, please come here. (At this juncture,
Arnel Alicando, come near to the court)

The court is warning you again that this is reception of evidence by

the prosecution after you plead guilty to the crime charged at, do you
understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty of your rape
with homicide?

A Yes, Your Honor.

Q Do you still insist that your plead of guilty is voluntary without force,
intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist of your plea of guilty?

A Yes, Your Honor.

Court:

Okey, proceed. 12
It is crystal clear, from the above-quoted portions of the transcript of the appellant's arraignment that
the trial judge made every effort to ascertain the voluntariness of the plea, and that he repeatedly
warned the defendant of the consequences of his plea. In other words —

A) The above-quoted proceedings satisfy the requirement of a searching inquiry.

There is no hard and fast rule requiring judges to conduct their searching inquiry in the detailed
manner suggested by the majority opinion, although judges should ideally strive to conduct as
detailed an inquiry as would be reasonable under the circumstances. In People v. Dayot13 we held
that:

A searching inquiry . . . compels the judge to content himself reasonably that the
accused has not been coerced or placed under a state
of duress — and that his guilty plea has not therefore been given improvidently —
other by actual threats of physical harm from malevolent quarters or simply because
of his, the judge's, intimidating robes.

xxx xxx xxx

While there can be no hard and fast rule as to how a judge may conduct searching
inquiry, as to the number and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since each case must be
measured according to its individual merit, taking into consideration the age,
educational attainment, and social status of the accused confessing guilt, among
other things, the singular barometer is that the judge must in all cases, fully convince
himself that: (1) the accused, in pleading guilty, is doing so voluntarily, and (2) he, in
so doing, is truly guilty, and that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their calling
and be worthy ministers of the law.

The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was entered into
voluntarily and that the defendant understood the consequences of his plea. There is no hard and
fast rule, as the Dayot case states, as to the number and character of the questions propounded.
Judges are not required to go into obsessive detail about the psychological, educational and
sociological background of the accused if from a reasonable inquiry conducted through a reasonable
number of questions he is fully convinced a searching inquiry has been met. There is a world of
difference between a fastidious attention to detail which furthers the end of justice and an attention
to detail and minutae bordering on obsessiveness which ultimately obstructs justice and defeats the
purpose of the law. Apropos to this there is —

B) No evidence that the information was not read in a language or dialect known to the
appellant.

The records in an overwhelming number of criminal cases brought before us contain informations
written in the English language without any indication, whatsoever, that the same was translated
from a language or dialect known to the defendant. And yet, even in Metro Manila alone, one
observes that the bulk of proceedings in our trial courts, including the process of arraignment, is
conducted in the vernacular. On the record of these cases normally printed in English, courts hardly
bother to point out those sections of the trial conducted in the vernacular and translated into English.
Because of this widespread practice, which the section on arraignment in the Rules of Court does
not proscribe — the presumption of regularity ought to apply. Otherwise, we should compel
ourselves to review the criminal cases decided by this Court since the imposition of the 1985
Revised Rules on Criminal Procedure and see whether there was any indication that the
arraignment of these criminal cases were, the records therein then ought to show, conducted in a
language known to the defendants. The absurdity of this argument by the defense then becomes
apparent, because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of Rule 116
even states that while the arraignment and plea be made of record failure to enter (the same) of
record shall not affect the validity of the proceedings. Even the rule on placing the arraignment and
plea on record is not absolute, and I cannot see how we can be too strict about indicating on record
whether proceedings were made in the vernacular in cases where in fact the proceedings were so
conducted. The argument that the information was not read in the language or dialect known to
appellant merely grasps on straws and ought to be dismissed for being so inconsequential as to be
bereft of merit.

Moreover, it is a matter of common practice that in every court, especially in the provinces, an
interpreter is always at hand to translate to the parties all questions propounded to them in the
language or dialect known to them. It is also common practice that the transcript of stenographic
notes submitted to the court only reflect the court proceedings conducted in the English language.
While again, the records do not categorically indicate that the information was read in the language
or dialect known to the defendant or that the questions asked were mandated in the vernacular or
dialect understood by him it is presumed, as we have actually done in many cases before this, that
such duty was regularly performed in the absence of any evidence to the contrary.14 In the face of
this common practice, the burden now lies on the defense to prove the contrary. Under the principle
of equal application of laws, we cannot have varying degrees of fastidiousness in the enforcement of
procedural rules based on the gravity of the penalty.

THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT IMPROVIDENT

In the case before us, when the appellant pleaded guilty in open court on June 28, 1994, appellant
was clearly assisted by counsel. The court took pains to repeatedly remind him of the grave
consequences of a plea of guilty, which appellant said he understood. One very such occasion, he
had every opportunity, through his counsel, to ask the court for clarification.

The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of the nature
of his plea and the implications of the plea he was making. On July 11, 1994, before the presentation
of evidence for the prosecution, he was once again asked by the court if he was sure of his plea. At
this time, appellant had more than sufficient time or about thirteen days to reflect on all the possible
consequences of his plea. If indeed it was not voluntarily made during his arraignment, he had
enough time and opportunity with the assistance of his lawyer to recant or at least express
reservations about the same. However, in spite of several warnings given by the trial court on
different occasions, appellant stood pat with his judicial admission.

Significantly, the records fail to indicate that appellant questioned his plea of guilty at any stage of
the trial. He had the opportunity to cross-examine the witnesses for the prosecution. He did not put
up any defense nor denied the inculpatory testimonies, documents and real evidence presented
against him (in fact, it was appellant himself who directed the police investigators to the location of
the various physical evidence, e.g. green slippers, earrings15).

Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the context
of the majority's insistence that herein appellant's plea of guilty was improvident and therefore void.
In the face of the seriousness of the accusations against him, his reticence was eloquent. As the
Court held in People vs. Pillones:

Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a quasi-
confession. An innocent person will at once naturally and emphatically repel an
accusation of crime, as a matter of self-preservation and self-defense, and as a
precaution against prejudicing himself. A person's silence, therefore, particularly
when it is persistent, will justify an inference that he is not innocent. (Underhill's
Criminal Evidence, 4th Ed., p. 401.)16

The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to prove the
guilt of the accused and the precise degree of his culpability. No where in the rules does it state that
an extrajudicial confession is a prerequisite for a conviction based on a plea of guilty. While the
constitutional infirmities that attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea of guilt made in open court
and not on the extrajudicial confession, which formed but a small aspect of the prosecution's case.
An extrajudicial confession only serves to confirm or substantiate a plea of guilty entered in open
court. As between an extrajudicial confession and a judicial admission, the latter significantly is given
evidentiary weight. Even assuming the extrajudicial confession in this case could not be given
evidentiary weight because of mistakes committed by authorities in conducting their custodial
investigation and in their gathering evidence, his plea of guilty on arraignment, his repeated
admissions to the same in spite of repeated warnings of the trial judge of the consequences of his
plea and the presence of ample corroborating testimony from a credible eyewitness to the crime
establish appellant's guilt beyond reasonable doubt.

The essence of the plea of guilty in a trial is that the accused admits his guilt freely, voluntarily and
with full knowledge of the consequences and meaning of his act, and with a clear understanding of
the precise nature of the crime charged in the complaint or information.17 A plea of guilty, when
formally entered on arraignment is sufficient to sustain a conviction charged in the information
without need of further proof.18 This, notwithstanding, (in line with the pronouncement of the Court in
several cases19) the trial court received evidence to determine if the appellant erred in admitting his
guilt. Independent of such plea, there was more than sufficient evidence adduced to prove that
appellant indeed committed the acts charged.

THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE EXCEPTIONS

TO THE EXCLUSIONARY RULE

Objections were vigorously raised by the defense regarding certain pieces of evidence obtained by
law enforcement authorities following the uncounseled custodial investigation of the accused in the
case at bench. These objections have been thoroughly threshed out and weighed against the other
factual material obtained at trial in order to determine whether or not, on the balance, the accused's
conviction ought to be sustained, modified in favor of a lesser penalty, or altogether thrown out. I
shall discuss them in the interest of thoroughness.

Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his uncounseled
custodial investigation. Since the information obtained, it has been pointed out, was taken
supposedly in violation of the Constitution, the pieces of evidence derivatively gathered should have
been excluded by the court below, following the fruit of the poisonous tree doctrine.
The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal searches
and seizures or evidence resulting from uncounseled custodial investigations of accused individuals.
The fruit of the poisonous tree doctrine extends these prohibitions to pieces of evidence derivatively
flowing from illegal searches and seizures or from admissions made by accused individuals under
conditions proscribed by the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those exceptions.

The discovery of the victim's body near the house of the accused would have naturally led law
enforcement authorities to undertake a more thorough investigation of the site, particularly in those
areas where the victim was last seen. Assuming local police had enough logistical capabilities to
form two teams to undertake two separate searches, one for physical evidence and other clues and
one for the possible suspects, the evidence objected to would have been inevitably discovered with
a thorough search of the site. Under the circumstances of this case where only one search was
initially conducted (obviously because of logistical reasons), primarily for a suspect, it would have
logically followed had a suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence would have been undertaken,
under conditions which would have validated a warrantless search, where the same physical
evidence would have been inevitably discovered. In other words, with or without appellant's
volunteered information, the pieces of evidence objected to — the blood-stained pillow, the T-shirt
and the victim's earring — would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.

Courts have generally approved the view that it is not necessary to hold that all evidence is fruit of
the poisonous tree. Under one of the recognized exceptions, the more appropriate question in such
cases is whether the evidence to which the objection is made would not have been discovered at all
but for the illegality or would have been discovered anyway by sources or procedures independent
of the illegality. Another exception refuses to treat the doctrine as absolutely sacred if the evidence
in question would have been inevitably discovered under normal conditions.

I submit, that under the peculiar circumstances of this case, the evidence objected to would have
been inevitably discovered anyway. In a long line of cases, courts have recognized that evidence
derived from information obtained illegally is not absolutely inadmissible under the fruit of the
poisonous tree doctrine where it is shown that such evidence would have been inevitably gained
even without the unlawful act.20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the poisonous tree for the reason
that the information which led to his confession, though the product of an illegal search would have
been discovered in the absence of such illegality.21 The Court in Lockridge vs. Superior Court was of
the opinion that where a witness is discovered as a result of illegal police conduct, his testimony is
admissible is he would have been discovered in the normal course of a normally conducted
investigation. 22 These and other recognized limitations to the fruit of the poisonous tree doctrine do
not have the effect of diluting the effect of our exclusionary rules. Rather, they serve the purpose of
the rule well by maintaining a reasonable balance between the need to deny evidence come by
through the exploitation of an illegality on one hand and the need to minimize opportunity for the
defendant in a criminal case to reap an undeserved and socially undesirable bonanza.23 Certainly it
could not be argued that with nothing in their hands, the police would not have gone back to the site
for a better inspection.

THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S CONVICTION

OF THE ACCUSED WITH MORAL CERTAINTY

Assuming arguendo the validity of the defense's arguments over the pieces of evidence recovered
by the police in the case at bench above-mentioned, a thorough review of the evidence utilized by
the trial court leads us to the conclusion that the defendant's conviction would have been sustained,
in any case, without the pieces of evidence objected to.24 Lest we mistake the trees for the forest, a
shifting of the pieces of evidence, and a separation therefrom of the physical evidence objected to
would nevertheless still leave the prosecution with enough legal evidence to convict the accused
with moral certainty. These include:

1. The defendant's own repeated admissions, in the presence of counsel and in open court that he
committed the acts charged;

2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.

Having discussed the first point, I shall go directly to Rebada's testimony, which the majority opinion
let pass without comment. For a better perspective of Rebada's testimony, allow me once again to
quote from the transcript:

Q Can you recall where were you on June 12, 1994, at around 5:30
P.M.?

A Yes, Sir.

Q Where were you?

A I was at home.

Q Where is your house situated?

A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.

Q Do you have any neighbor in that residence of yours at Rizal Pala-

pala?

A Yes, Sir, Arnel Alicando.

Q How far is the house of Arnel Alicando from your house?

A One and a half (1 1/2) arm's length.

Q On that time at 5:30 P.M. have you seen Arnel Alicando?

A Yes, Sir.

Q Where was Arnel Alicando at that time?

A He was upstairs, inside the house of Romeo Alicando.

Q What is the relation of Romeo Alicando to Arnel Alicando if you

know?

A Romeo is the uncle of Arnel.

Q Did Arnel Alicando have any companion while he was in the house
of his uncle, Romeo Alicando?

A Khazie Mae was his companion.

Q You are referring to Khazie Mae Penecilla, the victim in this case?

A Yes, Sir.

Q Aside from them, the two of them, Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the house of Romeo Alicando
at that time?

A No more, only the two of them.

Q Now, at that precise time at 5:30 of June 12, 1994, what have you
observed if you observed any in the house of Romeo Alicando
wherein Arnel Alicando and Khazie Mae Penecilla was at that time?

A I saw the child looking out in the window and I invited her for a
yemas candy, and Arnel Alicando suddenly closed the window.

Q When Arnel Alicando you said closed the window, what did you
observe after that if there is any?

A The child cried.

Q You are referring to the victim, Khazie Mae Penecilla when you
said the child was crying?

A Yes, Sir.

Q And after that, after the child was crying, what have you observed
at that time?

A And then she squealed.

Q After that, what did you do after hearing that and she, the child
squealed, what did you do if there was any?

A So, I went down from the house to the house of Romeo Alicando,
where I saw between an opening between the two slots. I went up
two steps.

Q And then what did you do?

A And so, I peeped between the floor and the door because there
was an opening.

Q Have you seen anything inside that house?

A Yes, Sir.

Q What have you seen if there is any?

A I saw Arnel Alicando who was naked/nude at that time lying on top
of the child wherein his left hand was holding the neck of the child.

Q When you said child, you are referring to the victim, Khazie Mae
Penecilla?

A Yes, Sir.

Q What did you do after seeing that?

A Because I was afraid at that time and I got nervous, so I went down
from that house and went to my own house and gathered my . . . . . . .

Q When you went to your house, was there any person inside your
house?

A My friend.

Q Who is the name of your friend?

A Ricardo Lagrana (Compare).

Q Have you talked to our compare, Ricardo Lagrana who was in your
house? Have you told about the incident that you have seen in the
house of Romeo Alicando wherein Arnel Alicando was at the top of
the victim, Khazie Mae Penecilla, without clothes at all?

A Yes, Sir.

Q What action did your compare do if there was any?

A When I told the incident to my compare he also felt nervous and he

went home.

Q How about on the same day of June 12, 1994, at around 6:00 P.M.,
where were you?

A I was inside the house.

Q And you have observed what is happening in your barangay at that

time?

A Yes, Sir.

Q What have you observed?

A The parents of Khazie Mae Penecilla were looking for her.

Q When you have observed, have you known that the parents of
Khazie Mae Penecilla were looking for her, it did not occur to your
mind to report the incident to the parents of Khazie Mae Penecilla on
what you have seen at that time?

A I did not go out of the house because I was afraid of Arnel

Alicando.

Q Have you seen on the same day after that incident of 5:30 in the
evening, have you seen again Arnel Alicando?

A Yes, Sir.

Q Where?

A I saw Arnel Alicando inside the house going around.

Q Did you talk to him?

A One June 12, 1994, at 10:45 in the evening, I told Arnel Alicando
and asked him, what time did the child go down from the house.

Q Where were you at that time when you asked Arnel Alicando?

A I was inside my house.

Q Because you are very near neighbor to each other?

A Yes, Sir.

Q And it is one and a half (1 1/2) arm's length your house from Arnel
Alicando's house?

A Yes, Sir.

Q Did Arnel Alicando answer you?

A He answered, I do not know because I was drank at that time.

Q How about one June 13, 1994 in the morning at around 8:00
o'clock, what did you observe in your barangay?

A None.

Q You have not observed anything?

A None.
 Q Do you know when the parents of the victim, Khazie Mae Penecilla
found their daughter?

A Khazie Mae Penecilla was found at around 8:00 A.M.

Q Of what day?

A June 13, 1994.

Q Why do you know that this Khazie Mae Penecilla was only found
by their parents?

A Because Leopoldo (Torong) Santiago, when he went down from

their house and answered the call of nature, he found the child under
their house. 25

It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of impropriety
or falsehood, is sufficient to convict an accused even if uncorroborated. In this case, Rebada's
testimony was positive and straightforward. I see no reason why the same should not be given the
credence and the weight that it deserves, without our ignoring established principles in the law on
evidence. Such factual findings of the trial court on the issue of credibility of a witness are accorded
great weight and respect on appeal, as it should have been in the instant case, because the trial
court had the every available opportunity to observe the demeanor of the lone witness during the
trial. Her belated reporting of the incident the next morning, to which the defense urged the lower
court to accord great weight, is hardly out of the ordinary.

Individual reactions are motivated by varied and varying environmental factors. There is no standard
norm of human behavioral response when one is confronted with a strange, startling or frightful
experience.26 Fear and self preservation are strong motivating factors. It is common for people to
choose not to get involved when a crime is committed, otherwise there should only be a few
unsolved crimes.27 Rebada, in this case, was obviously terrified with what she saw. Self-preservation
and fear of possible reprisals from the appellant would have initially overwhelmed any desire on her
part to reveal what she had seen during the incident. She tried her best to remain as calm and
casual as possible, and pretend that she did not see anything the instant she saw Alicando, when
she asked appellant what time Khazi Mae got down from his house following the incident.28 Given
these factors, it would have been too much to expect Rebada in her mixed state of dread, fear,
revulsion and instinctive self-preservation to harness superhuman reserves of courage to stop
appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped.29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's distraught
parents, and overcoming her fear with some prodding from her husband, Luisa Rebada was finally
driven by conscience to reveal what she knew the following morning.

The minor inconsistencies in Rebada's testimony are understandable under these circumstances.
However, it should be stressed here that the trial court's conclusions were founded principally on the
direct, positive and categorical assertions made by Rebada as regards material events in the crime.
It is worthy to stress, moreover, that Rebada never wavered in her oral testimony even on intense
cross-examination from the defense. In her affidavit, she declared that she saw Khazi Mae at
appellant's house; that appellant closed the window; and after hearing the child's cry and squeal,
peeped into the opening and saw appellant on top of the victim. These were the very same
declarations she made when she took the witness stand. While she may have wavered on a minor
detail (as to whether it was the right or the left hand of the appellant which was used in choking the
victim) these should not be sufficient to debunk her credibility. 30 She had no reason to falsely testify
against the appellant and there were no possible motives alleged for her to do so. She is not in any
way related to the Penecillas, and there was no evidence adduced to show that she harbored any ill-
feelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive.31

Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient evidence
corroborating and unmistakably pointing to the appellant as the author of the crime. Khazi Mae was
last seen in the company of the appellant. Rebada testified that she saw appellant naked on top of
Khazi Mae. Recovered from the latter's house were Khazi Mae's green slippers, pair of gold
earrings, her dress, bloodied buri mat and pillow. The fact of shoddy police work in the recovery of
these pieces of evidence does not escape us. But whether on not these pieces should have been
admissible is on hindsight hardly relevant in the face of ample legally admissible evidence justifying
the trial court's guilty verdict.

As a last resort, appellant would want to drive home the point that rape was not committed. He
argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push and pull
movement 2) the requested NBI report on the examination of Khazi Mae's underwear to show the
presence or absence of the male semen was not presented; and 3) the autopsy report revealed that
the proximate cause of death was asphyxiation by strangulation.

In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's house to
take a look at the dead body, he looked at Khazi Mae's underwear and saw that it was bloodied. The
underwear was sent to the NBI Laboratory for examination. Considering, however, the inadequate
facilities of the NBI Laboratory at Iloilo, the underwear was referred to Manila for examination. Since
it will take time for the court to wait for the results from Manila, the trial court dispensed with it as this
would only serve as corroborating evidence to the fact of rape.32

Moreover, rape is committed whenever there is penetration, no matter how slight into the genital
organ of the victim.33 The vaginal and anal findings of Dr. Tito Doromal revealed that the lacerated
wound from the fourchette up to the dome of the rectum was caused by a forcible entry of an object.
In view of settled jurisprudence to the effect that rape is committed by the mere touching of the male
genital organ on the vagina, it hardly is relevant whether or not semen or sperm are present or
absent. Absence of emission does not negate rape. Rebada's testimony that she saw appellant
naked on top of the victim when she peeped through an opening between the floor and the door of
appellant's house and the autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly observed by the Solicitor
General, the corpus delicti was there for all to see. The trial court, therefore, did not err in dispensing
with the results of the NBI laboratory examination of Khazi Mae's underwear to determine the
presence of male semen, a fact of little relevance after the rape was established by definitive legal
evidence.

Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same occasion. As we
observed in People v. Yu,34 unity of thought and action in the criminal purpose of the accused cannot
be altered by the circumstances that both the crime of rape and the crime of murder resulted. The
accused had to choke and strangle the girl at the same time that he was satisfying his lust on her.35

Based on all of the foregoing, it is clear and inescapable that appellant committed the heinous crime
or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:

Art. 335 of the same Code is hereby amended to read as follows:

 Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

xxx xxx xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

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

xxx xxx xxx

(4) When the victim is a religious or a child below seven (7) years old.

xxx xxx xxx

Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused with
the crime of subject to our automatic review, it is painfully clear — even to those who have
reservations about imposing the death penalty among us — that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death in this case.

Convictions for the crime of rape have been sustained by this Court in an overwhelming number of
cases on uncorroborated evidence given almost exclusively by the complainant alone. Against this
backdrop (of most cases of rape where reliance is placed solely on the victims allegations) the trial
Court in the case at bench, arrived at its conclusions principally on the basis of two key pieces of
testimonial evidence: 1) the accused's admission of guilt in not one but two occasions in open court
(in the presence of his lawyer) even after being warned on both occasions by the judge of all the
possible consequences of his admission the accused's admission of guilt; and 2) the essentially
uncontradicted testimony of an eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony — which the defense spiritedly tried to magnify — the net
effect of the same was to enhance, not diminish, the testimony of the lone eyewitness because
minor incongruencies are on the whole indicative of honest and unrehearsed declarations and often
amplify the credibility of such declarations. 36 Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one of these testimonies,
standing alone, would have been adequate to obtain the accused's conviction.

In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the death
penalty for specific offenses under Republic Act 7659 has left our courts with no choice but to
impose the penalty for crimes clearly enumerated in the said law. If a court, after leaving no stone
unturned, finds it necessary to impose the penalty, I believe that it does not do so as an infallible
God exercising a divine right to give or take away human life, but as a fallible human institution
recognizing the importance of according majesty to laws so indispensable to maintaining social
order. In the instant case, after a thorough and searching review of the evidence and an evaluation
of the procedural and constitutional objections adduced either in support of an acquittal or of
imposing a less severe penalty it should be fairly obvious to us that the trial court committed no error
in finding the accused guilty as charged. Recognizing our fallible nature, the quantum of evidence
necessary to convict has never been absolute proof beyond any doubt but merely proof beyond
reasonable doubt. The death penalty in the instant case was clearly imposed in conformity with the
mandate of law and the Constitution.

Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.

Separate Opinions

KAPUNAN, J., dissenting:

The civilized mind normally recoils at the idea of taking a man's life by way of retribution for the
commission of a crime. However, every so often, a crime so dastardly and repulsive comes along
that even an individual usually predisposed towards rehabilitating the hard-core criminal would no
longer wish to suffer in silent rage at society's kid-glove treatment of such offender, but would readily
opt to exact a commensurate requital in the form of capital punishment where circumstances so
demand.

Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that setting
absolute outer limits on deviance is a necessary component of group identification and survival.
Justice Oliver Wendell Holmes may have sensed this truth when he wrote, in The Common
Law (1881), "The first requirement of a sound body of law is that it should correspond with the actual
feelings and demands of the community, whether right or wrong (1938 ed:, p. 41)."1

Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and wanton
destruction of property affecting the nation's efforts towards sustainable development and prosperity
while at the same time undermining the people's faith in the Government, Congress enacted
Republic Act 7659,2 imposing capital punishment on certain heinous crimes.

The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at bench
belong to this genre.

A totally innocent child was forever denied the opportunity to enjoy life beyond the age of four by the
gruesome and hideous acts allegedly committed by the appellant who, according to the prosecution,
was not content merely with satisfying his beastly desires on her, but also strangled her to death.
Whether or not the circumstances of the present case require the imposition of the death penalty is
the ultimate issue before us. After a thorough review of the facts and the evidence, I am afraid, I
have to dissent from the majority. The legal evidence available to us overwhelmingly supports the
lower court's conclusions. We should not shirk from our legal duty to impose the death penalty.

In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was having a
drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his (Romeo's) house at
Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left, except for the
appellant. Appellant was residing at his uncle's house about five (5) arm's length away from the
Penecilla's house.

When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He and his
wife looked for her until 1:00 in the morning to no avail.

The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering the call
of nature outside his house, he chanced the dead body of Khazi Mae. Immediately, the girl's parents
were informed. The small, lifeless body was brought to their house.
The matter was reported to the police at once. At this point, Luisa Rebada, who lived about 1-1/2
arm's length away from the house of appellant related to the girl's distraught parents what she knew.3

Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the window of
appellant's house. She called out to her and offered to buy "yemas," for her. Appellant suddenly
closed the window. Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity aroused, she
crept two steps up the appellant's house, peeped through an opening between the floor and the
door, and saw appellant naked on top of Khazi Mae, his right hand choking the girl's neck. Rebada
became frightened and went back to her house to gather her children. She told her compadre,
Ricardo Lagranai who was in her house at that time, of what she saw. The latter got nervous and
left. That evening when she heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae left his house. Appellant
replied that he did not know since he was drunk.4 With Luisa Rebada's revelation, appellant was
arrested.

During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and killing
Khazi Mae.5 The police were able to recover from appellant's house Khazi Mae's green slippers, a
pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with a blood stain
in the middle, and a stained T-shirt owned by appellant.

An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:

BEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infra-
clavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left

chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left

iliac crest.

ON OPENING THE SKULL & THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

EXTREMITIES:
 1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,
left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum.

b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.6

Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with homicide,
committed as follows:

That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force, violence and intimidation to wit: by
then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of
age, choking her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured cervical
vertebra and lacerations of the vaginal and rectal openings causing profuse
hemorrhages and other injuries which are necessarily fatal and which were the direct
cause of her death thereafter.

CONTRARY TO LAW.7

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's Office
(PAO), pleaded guilty to the crime charged.
The trial court ordered the prosecution to present evidence to prove the guilt of the accused and the
precise degree of his culpability. It likewise set the case for reception of evidence for the accused, if
he wished to.8

In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal, the
medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police Station; (4)
PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the victim's
father.

The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show that the
proximate cause of death was asphyxia by strangulation.

On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel Alicando.

The case is now before us on automatic review. Disagreeing with the trial court's conviction of the
accused for the crime of Rape with Homicide and the said court's imposition of the death penalty the
Court's majority has decided to overturn the conviction and remand the case to the trial court on the
basis of the following alleged procedural irregularities:

First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and void;

Third, some prosecution evidence, offered independently of the plea of guilt of the appellant, were
inadmissible, yet were considered by the trial court in convicting the appellant.

I strongly disagree.

II

THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING RULES ON

ARRAIGNMENT AND PLEA.

A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.

It is plainly obvious from an examination of the appropriate rules and the record of the case that: 1)
there is absolutely nothing on the record which would warrant a finding the information was not read
in the language or dialect known to the appellant; 2) the rule on arraignment and plea does not
absolutely require that the same be indicated in the record of every criminal case; 3) Rule 116
Section 1 contains nothing requiring trial courts to indicate in the record the fact that the information
was read in the language or dialect known to the defendant, even if the same was in fact actually
complied with by the lower court.

The rule on arraignment, Rule 116 provides the following:

Sec. 1: Arraignment and plea; how made. — (a) The accused must be arraigned
before the court where the complaint or information has been filed or assigned for
trial. The arraignment must be made in open court by the judge or clerk by furnishing
the accused a copy of the complaint or information with the list of witnesses, reading
the same in the language or dialect known to him and asking him whether he pleads
 guilty or not guilty. The prosecution may, however, call at the trial witnesses other
than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his
plea. Both arraignment and plea shall be made of record, but a failure to enter of
record shall not affect the validity of the proceedings.

(c) If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not
guilty shall be entered for him.

xxx xxx xxx

Sec. 3: Plea of guilty to capital offense; reception of evidence. When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and require
the prosecution to prove his guilt and the precise degree of culpability. the accused
may also present evidence in his behalf.

When an accused is arraigned in connection with a criminal charge, it is the duty of the court to
inform him of its nature and cause so that he may be able to comprehend the charges against him
as well as the circumstances attendant thereto. When the charge is of a serious nature, it becomes
the imperative duty of the lawyer present not only to assist the accused during the reading of the
information but also to explain to him the gravity and consequence of his plea.9

Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty. While
justice demands speedy administration, judges are duty bound to be extra solicitous in seeing to it
that when an accused pleads guilty, he fully understands the meaning of his plea and the import of
an inevitable conviction.10

Consequently, three things need to be accomplished after the accused in a criminal case enters a
plea of guilty to a capital offense:

(1) the court should conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the accused's plea;

(2) the lower court should require the prosecution to prove the guilt of the accused and the precise
degree of his culpability; and

(3) the court should inquire whether or not the accused wishes to present evidence on his behalf and
should allow him to do so if he so desires. A judge who fails to observe this requirement commits a
grave abuse of discretion.

These requirements have been complied with in this case, which the following pertinent portions of
the appellant's arraignment, quoted from the record support:

Prosecutor Edwin Fama —

Appearing as public prosecutor.

Atty. Rogelio Antiquiera —

For the accused, Your Honor. Ready for arraignment.

Interpreter:

(Reading the information to the accused for arraignment and pre-

trial.)

Note:

(After reading the information to the accused, accused pleads guilty.)

Court:

Question of the court to the accused.

Q Considering that this is a crime and under the amended law is a

heinous crime, because of your plea of guilty without the consent or
even against the discretion of the court, the court will give you a
mandatory death penalty because of the crime charged, do you
understand that?

Accused:

Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary will or without
any force or intimidation from any one or whatever.

Accused:

None, Your Honor.

Q Are you sure?

Accused:

Yes, Your Honor.

Q Or maybe because you the were manhandled or maltreated by

anyone and that will just be consideration for you to plead guilty?

Accused:

No, Your Honor.

Court:

Were you not manhandled, please let us see your body?

Note:
 (Accused raised his prison uniform or shirt and showed to the court
his body from waist up).

Accused:

No, Your Honor.

Court:

You were not maltreated in the jail?

Accused:

No, Your Honor.

Court:

Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Accused:

No, Your Honor.

Court:

If you plead guilty to the crime charged there will be some effects on
your civil rights but not until the decision will be affirmed by the
Supreme Court.

Accused:

Yes, Your Honor. 11

Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:

Appearing as the public prosecutor, ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera:

For the accused, Your Honor.

Court:
 Before the court will proceed with the reception of evidence by the
prosecution, Arnel Alicando, please come here. (At this juncture,
Arnel Alicando, come near to the court)

The court is warning you again that this is reception of evidence by

the prosecution after you plead guilty to the crime charged at, do you
understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty of your rape
with homicide?

A Yes, Your Honor.

Q Do you still insist that your plead of guilty is voluntary without force,
intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist of your plea of guilty?

A Yes, Your Honor.

Court:

Okey, proceed. 12

It is crystal clear, from the above-quoted portions of the transcript of the appellant's arraignment that
the trial judge made every effort to ascertain the voluntariness of the plea, and that he repeatedly
warned the defendant of the consequences of his plea. In other words —

A) The above-quoted proceedings satisfy the requirement of a searching inquiry.

There is no hard and fast rule requiring judges to conduct their searching inquiry in the detailed
manner suggested by the majority opinion, although judges should ideally strive to conduct as
detailed an inquiry as would be reasonable under the circumstances. In People v. Dayot13 we held
that:

A searching inquiry . . . compels the judge to content himself reasonably that the
accused has not been coerced or placed under a state
of duress — and that his guilty plea has not therefore been given improvidently —
other by actual threats of physical harm from malevolent quarters or simply because
of his, the judge's, intimidating robes.
 xxx xxx xxx

While there can be no hard and fast rule as to how a judge may conduct searching
inquiry, as to the number and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since each case must be
measured according to its individual merit, taking into consideration the age,
educational attainment, and social status of the accused confessing guilt, among
other things, the singular barometer is that the judge must in all cases, fully convince
himself that: (1) the accused, in pleading guilty, is doing so voluntarily, and (2) he, in
so doing, is truly guilty, and that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their calling
and be worthy ministers of the law.

The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was entered into
voluntarily and that the defendant understood the consequences of his plea. There is no hard and
fast rule, as the Dayot case states, as to the number and character of the questions propounded.
Judges are not required to go into obsessive detail about the psychological, educational and
sociological background of the accused if from a reasonable inquiry conducted through a reasonable
number of questions he is fully convinced a searching inquiry has been met. There is a world of
difference between a fastidious attention to detail which furthers the end of justice and an attention
to detail and minutae bordering on obsessiveness which ultimately obstructs justice and defeats the
purpose of the law. Apropos to this there is —

B) No evidence that the information was not read in a language or dialect known to the
appellant.

The records in an overwhelming number of criminal cases brought before us contain informations
written in the English language without any indication, whatsoever, that the same was translated
from a language or dialect known to the defendant. And yet, even in Metro Manila alone, one
observes that the bulk of proceedings in our trial courts, including the process of arraignment, is
conducted in the vernacular. On the record of these cases normally printed in English, courts hardly
bother to point out those sections of the trial conducted in the vernacular and translated into English.
Because of this widespread practice, which the section on arraignment in the Rules of Court does
not proscribe — the presumption of regularity ought to apply. Otherwise, we should compel
ourselves to review the criminal cases decided by this Court since the imposition of the 1985
Revised Rules on Criminal Procedure and see whether there was any indication that the
arraignment of these criminal cases were, the records therein then ought to show, conducted in a
language known to the defendants. The absurdity of this argument by the defense then becomes
apparent, because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of Rule 116
even states that while the arraignment and plea be made of record failure to enter (the same) of
record shall not affect the validity of the proceedings. Even the rule on placing the arraignment and
plea on record is not absolute, and I cannot see how we can be too strict about indicating on record
whether proceedings were made in the vernacular in cases where in fact the proceedings were so
conducted. The argument that the information was not read in the language or dialect known to
appellant merely grasps on straws and ought to be dismissed for being so inconsequential as to be
bereft of merit.

Moreover, it is a matter of common practice that in every court, especially in the provinces, an
interpreter is always at hand to translate to the parties all questions propounded to them in the
language or dialect known to them. It is also common practice that the transcript of stenographic
notes submitted to the court only reflect the court proceedings conducted in the English language.
While again, the records do not categorically indicate that the information was read in the language
or dialect known to the defendant or that the questions asked were mandated in the vernacular or
dialect understood by him it is presumed, as we have actually done in many cases before this, that
such duty was regularly performed in the absence of any evidence to the contrary.14 In the face of
this common practice, the burden now lies on the defense to prove the contrary. Under the principle
of equal application of laws, we cannot have varying degrees of fastidiousness in the enforcement of
procedural rules based on the gravity of the penalty.

THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT IMPROVIDENT

In the case before us, when the appellant pleaded guilty in open court on June 28, 1994, appellant
was clearly assisted by counsel. The court took pains to repeatedly remind him of the grave
consequences of a plea of guilty, which appellant said he understood. One very such occasion, he
had every opportunity, through his counsel, to ask the court for clarification.

The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of the nature
of his plea and the implications of the plea he was making. On July 11, 1994, before the presentation
of evidence for the prosecution, he was once again asked by the court if he was sure of his plea. At
this time, appellant had more than sufficient time or about thirteen days to reflect on all the possible
consequences of his plea. If indeed it was not voluntarily made during his arraignment, he had
enough time and opportunity with the assistance of his lawyer to recant or at least express
reservations about the same. However, in spite of several warnings given by the trial court on
different occasions, appellant stood pat with his judicial admission.

Significantly, the records fail to indicate that appellant questioned his plea of guilty at any stage of
the trial. He had the opportunity to cross-examine the witnesses for the prosecution. He did not put
up any defense nor denied the inculpatory testimonies, documents and real evidence presented
against him (in fact, it was appellant himself who directed the police investigators to the location of
the various physical evidence, e.g. green slippers, earrings15).

Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the context
of the majority's insistence that herein appellant's plea of guilty was improvident and therefore void.
In the face of the seriousness of the accusations against him, his reticence was eloquent. As the
Court held in People vs. Pillones:

Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a quasi-
confession. An innocent person will at once naturally and emphatically repel an
accusation of crime, as a matter of self-preservation and self-defense, and as a
precaution against prejudicing himself. A person's silence, therefore, particularly
when it is persistent, will justify an inference that he is not innocent. (Underhill's
Criminal Evidence, 4th Ed., p. 401.)16

The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to prove the
guilt of the accused and the precise degree of his culpability. No where in the rules does it state that
an extrajudicial confession is a prerequisite for a conviction based on a plea of guilty. While the
constitutional infirmities that attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea of guilt made in open court
and not on the extrajudicial confession, which formed but a small aspect of the prosecution's case.
An extrajudicial confession only serves to confirm or substantiate a plea of guilty entered in open
court. As between an extrajudicial confession and a judicial admission, the latter significantly is given
evidentiary weight. Even assuming the extrajudicial confession in this case could not be given
evidentiary weight because of mistakes committed by authorities in conducting their custodial
investigation and in their gathering evidence, his plea of guilty on arraignment, his repeated
admissions to the same in spite of repeated warnings of the trial judge of the consequences of his
plea and the presence of ample corroborating testimony from a credible eyewitness to the crime
establish appellant's guilt beyond reasonable doubt.

The essence of the plea of guilty in a trial is that the accused admits his guilt freely, voluntarily and
with full knowledge of the consequences and meaning of his act, and with a clear understanding of
the precise nature of the crime charged in the complaint or information.17 A plea of guilty, when
formally entered on arraignment is sufficient to sustain a conviction charged in the information
without need of further proof.18 This, notwithstanding, (in line with the pronouncement of the Court in
several cases19) the trial court received evidence to determine if the appellant erred in admitting his
guilt. Independent of such plea, there was more than sufficient evidence adduced to prove that
appellant indeed committed the acts charged.

THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE EXCEPTIONS

TO THE EXCLUSIONARY RULE

Objections were vigorously raised by the defense regarding certain pieces of evidence obtained by
law enforcement authorities following the uncounseled custodial investigation of the accused in the
case at bench. These objections have been thoroughly threshed out and weighed against the other
factual material obtained at trial in order to determine whether or not, on the balance, the accused's
conviction ought to be sustained, modified in favor of a lesser penalty, or altogether thrown out. I
shall discuss them in the interest of thoroughness.

Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his uncounseled
custodial investigation. Since the information obtained, it has been pointed out, was taken
supposedly in violation of the Constitution, the pieces of evidence derivatively gathered should have
been excluded by the court below, following the fruit of the poisonous tree doctrine.

The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal searches
and seizures or evidence resulting from uncounseled custodial investigations of accused individuals.
The fruit of the poisonous tree doctrine extends these prohibitions to pieces of evidence derivatively
flowing from illegal searches and seizures or from admissions made by accused individuals under
conditions proscribed by the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those exceptions.

The discovery of the victim's body near the house of the accused would have naturally led law
enforcement authorities to undertake a more thorough investigation of the site, particularly in those
areas where the victim was last seen. Assuming local police had enough logistical capabilities to
form two teams to undertake two separate searches, one for physical evidence and other clues and
one for the possible suspects, the evidence objected to would have been inevitably discovered with
a thorough search of the site. Under the circumstances of this case where only one search was
initially conducted (obviously because of logistical reasons), primarily for a suspect, it would have
logically followed had a suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence would have been undertaken,
under conditions which would have validated a warrantless search, where the same physical
evidence would have been inevitably discovered. In other words, with or without appellant's
volunteered information, the pieces of evidence objected to — the blood-stained pillow, the T-shirt
and the victim's earring — would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.

Courts have generally approved the view that it is not necessary to hold that all evidence is fruit of
the poisonous tree. Under one of the recognized exceptions, the more appropriate question in such
cases is whether the evidence to which the objection is made would not have been discovered at all
but for the illegality or would have been discovered anyway by sources or procedures independent
of the illegality. Another exception refuses to treat the doctrine as absolutely sacred if the evidence
in question would have been inevitably discovered under normal conditions.

I submit, that under the peculiar circumstances of this case, the evidence objected to would have
been inevitably discovered anyway. In a long line of cases, courts have recognized that evidence
derived from information obtained illegally is not absolutely inadmissible under the fruit of the
poisonous tree doctrine where it is shown that such evidence would have been inevitably gained
even without the unlawful act.20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the poisonous tree for the reason
that the information which led to his confession, though the product of an illegal search would have
been discovered in the absence of such illegality.21 The Court in Lockridge vs. Superior Court was of
the opinion that where a witness is discovered as a result of illegal police conduct, his testimony is
admissible is he would have been discovered in the normal course of a normally conducted
investigation. 22 These and other recognized limitations to the fruit of the poisonous tree doctrine do
not have the effect of diluting the effect of our exclusionary rules. Rather, they serve the purpose of
the rule well by maintaining a reasonable balance between the need to deny evidence come by
through the exploitation of an illegality on one hand and the need to minimize opportunity for the
defendant in a criminal case to reap an undeserved and socially undesirable bonanza.23 Certainly it
could not be argued that with nothing in their hands, the police would not have gone back to the site
for a better inspection.

THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S CONVICTION

OF THE ACCUSED WITH MORAL CERTAINTY

Assuming arguendo the validity of the defense's arguments over the pieces of evidence recovered
by the police in the case at bench above-mentioned, a thorough review of the evidence utilized by
the trial court leads us to the conclusion that the defendant's conviction would have been sustained,
in any case, without the pieces of evidence objected to.24 Lest we mistake the trees for the forest, a
shifting of the pieces of evidence, and a separation therefrom of the physical evidence objected to
would nevertheless still leave the prosecution with enough legal evidence to convict the accused
with moral certainty. These include:

1. The defendant's own repeated admissions, in the presence of counsel and in open court that he
committed the acts charged;

2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.

Having discussed the first point, I shall go directly to Rebada's testimony, which the majority opinion
let pass without comment. For a better perspective of Rebada's testimony, allow me once again to
quote from the transcript:

Q Can you recall where were you on June 12, 1994, at around 5:30
P.M.?
A Yes, Sir.

Q Where were you?

A I was at home.

Q Where is your house situated?

A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.

Q Do you have any neighbor in that residence of yours at Rizal Pala-

pala?

A Yes, Sir, Arnel Alicando.

Q How far is the house of Arnel Alicando from your house?

A One and a half (1 1/2) arm's length.

Q On that time at 5:30 P.M. have you seen Arnel Alicando?

A Yes, Sir.

Q Where was Arnel Alicando at that time?

A He was upstairs, inside the house of Romeo Alicando.

Q What is the relation of Romeo Alicando to Arnel Alicando if you

know?

A Romeo is the uncle of Arnel.

Q Did Arnel Alicando have any companion while he was in the house
of his uncle, Romeo Alicando?

A Khazie Mae was his companion.

Q You are referring to Khazie Mae Penecilla, the victim in this case?

A Yes, Sir.

Q Aside from them, the two of them, Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the house of Romeo Alicando
at that time?

A No more, only the two of them.

Q Now, at that precise time at 5:30 of June 12, 1994, what have you
observed if you observed any in the house of Romeo Alicando
wherein Arnel Alicando and Khazie Mae Penecilla was at that time?
A I saw the child looking out in the window and I invited her for a
yemas candy, and Arnel Alicando suddenly closed the window.

Q When Arnel Alicando you said closed the window, what did you
observe after that if there is any?

A The child cried.

Q You are referring to the victim, Khazie Mae Penecilla when you
said the child was crying?

A Yes, Sir.

Q And after that, after the child was crying, what have you observed
at that time?

A And then she squealed.

Q After that, what did you do after hearing that and she, the child
squealed, what did you do if there was any?

A So, I went down from the house to the house of Romeo Alicando,
where I saw between an opening between the two slots. I went up
two steps.

Q And then what did you do?

A And so, I peeped between the floor and the door because there
was an opening.

Q Have you seen anything inside that house?

A Yes, Sir.

Q What have you seen if there is any?

A I saw Arnel Alicando who was naked/nude at that time lying on top
of the child wherein his left hand was holding the neck of the child.

Q When you said child, you are referring to the victim, Khazie Mae
Penecilla?

A Yes, Sir.

Q What did you do after seeing that?

A Because I was afraid at that time and I got nervous, so I went down
from that house and went to my own house and gathered my . . . . . . .
Q When you went to your house, was there any person inside your
house?

A My friend.

Q Who is the name of your friend?

A Ricardo Lagrana (Compare).

Q Have you talked to our compare, Ricardo Lagrana who was in your
house? Have you told about the incident that you have seen in the
house of Romeo Alicando wherein Arnel Alicando was at the top of
the victim, Khazie Mae Penecilla, without clothes at all?

A Yes, Sir.

Q What action did your compare do if there was any?

A When I told the incident to my compare he also felt nervous and he

went home.

Q How about on the same day of June 12, 1994, at around 6:00 P.M.,
where were you?

A I was inside the house.

Q And you have observed what is happening in your barangay at that

time?

A Yes, Sir.

Q What have you observed?

A The parents of Khazie Mae Penecilla were looking for her.

Q When you have observed, have you known that the parents of
Khazie Mae Penecilla were looking for her, it did not occur to your
mind to report the incident to the parents of Khazie Mae Penecilla on
what you have seen at that time?

A I did not go out of the house because I was afraid of Arnel

Alicando.

Q Have you seen on the same day after that incident of 5:30 in the
evening, have you seen again Arnel Alicando?

A Yes, Sir.

Q Where?
A I saw Arnel Alicando inside the house going around.

Q Did you talk to him?

A One June 12, 1994, at 10:45 in the evening, I told Arnel Alicando
and asked him, what time did the child go down from the house.

Q Where were you at that time when you asked Arnel Alicando?

A I was inside my house.

Q Because you are very near neighbor to each other?

A Yes, Sir.

Q And it is one and a half (1 1/2) arm's length your house from Arnel
Alicando's house?

A Yes, Sir.

Q Did Arnel Alicando answer you?

A He answered, I do not know because I was drank at that time.

Q How about one June 13, 1994 in the morning at around 8:00
o'clock, what did you observe in your barangay?

A None.

Q You have not observed anything?

A None.

Q Do you know when the parents of the victim, Khazie Mae Penecilla
found their daughter?

A Khazie Mae Penecilla was found at around 8:00 A.M.

Q Of what day?

A June 13, 1994.

Q Why do you know that this Khazie Mae Penecilla was only found
by their parents?

A Because Leopoldo (Torong) Santiago, when he went down from

their house and answered the call of nature, he found the child under
their house. 25
It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of impropriety
or falsehood, is sufficient to convict an accused even if uncorroborated. In this case, Rebada's
testimony was positive and straightforward. I see no reason why the same should not be given the
credence and the weight that it deserves, without our ignoring established principles in the law on
evidence. Such factual findings of the trial court on the issue of credibility of a witness are accorded
great weight and respect on appeal, as it should have been in the instant case, because the trial
court had the every available opportunity to observe the demeanor of the lone witness during the
trial. Her belated reporting of the incident the next morning, to which the defense urged the lower
court to accord great weight, is hardly out of the ordinary.

Individual reactions are motivated by varied and varying environmental factors. There is no standard
norm of human behavioral response when one is confronted with a strange, startling or frightful
experience.26 Fear and self preservation are strong motivating factors. It is common for people to
choose not to get involved when a crime is committed, otherwise there should only be a few
unsolved crimes.27 Rebada, in this case, was obviously terrified with what she saw. Self-preservation
and fear of possible reprisals from the appellant would have initially overwhelmed any desire on her
part to reveal what she had seen during the incident. She tried her best to remain as calm and
casual as possible, and pretend that she did not see anything the instant she saw Alicando, when
she asked appellant what time Khazi Mae got down from his house following the incident.28 Given
these factors, it would have been too much to expect Rebada in her mixed state of dread, fear,
revulsion and instinctive self-preservation to harness superhuman reserves of courage to stop
appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped.29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's distraught
parents, and overcoming her fear with some prodding from her husband, Luisa Rebada was finally
driven by conscience to reveal what she knew the following morning.

The minor inconsistencies in Rebada's testimony are understandable under these circumstances.
However, it should be stressed here that the trial court's conclusions were founded principally on the
direct, positive and categorical assertions made by Rebada as regards material events in the crime.
It is worthy to stress, moreover, that Rebada never wavered in her oral testimony even on intense
cross-examination from the defense. In her affidavit, she declared that she saw Khazi Mae at
appellant's house; that appellant closed the window; and after hearing the child's cry and squeal,
peeped into the opening and saw appellant on top of the victim. These were the very same
declarations she made when she took the witness stand. While she may have wavered on a minor
detail (as to whether it was the right or the left hand of the appellant which was used in choking the
victim) these should not be sufficient to debunk her credibility. 30 She had no reason to falsely testify
against the appellant and there were no possible motives alleged for her to do so. She is not in any
way related to the Penecillas, and there was no evidence adduced to show that she harbored any ill-
feelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive.31

Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient evidence
corroborating and unmistakably pointing to the appellant as the author of the crime. Khazi Mae was
last seen in the company of the appellant. Rebada testified that she saw appellant naked on top of
Khazi Mae. Recovered from the latter's house were Khazi Mae's green slippers, pair of gold
earrings, her dress, bloodied buri mat and pillow. The fact of shoddy police work in the recovery of
these pieces of evidence does not escape us. But whether on not these pieces should have been
admissible is on hindsight hardly relevant in the face of ample legally admissible evidence justifying
the trial court's guilty verdict.

As a last resort, appellant would want to drive home the point that rape was not committed. He
argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push and pull
movement 2) the requested NBI report on the examination of Khazi Mae's underwear to show the
presence or absence of the male semen was not presented; and 3) the autopsy report revealed that
the proximate cause of death was asphyxiation by strangulation.

In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's house to
take a look at the dead body, he looked at Khazi Mae's underwear and saw that it was bloodied. The
underwear was sent to the NBI Laboratory for examination. Considering, however, the inadequate
facilities of the NBI Laboratory at Iloilo, the underwear was referred to Manila for examination. Since
it will take time for the court to wait for the results from Manila, the trial court dispensed with it as this
would only serve as corroborating evidence to the fact of rape.32

Moreover, rape is committed whenever there is penetration, no matter how slight into the genital
organ of the victim.33 The vaginal and anal findings of Dr. Tito Doromal revealed that the lacerated
wound from the fourchette up to the dome of the rectum was caused by a forcible entry of an object.
In view of settled jurisprudence to the effect that rape is committed by the mere touching of the male
genital organ on the vagina, it hardly is relevant whether or not semen or sperm are present or
absent. Absence of emission does not negate rape. Rebada's testimony that she saw appellant
naked on top of the victim when she peeped through an opening between the floor and the door of
appellant's house and the autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly observed by the Solicitor
General, the corpus delicti was there for all to see. The trial court, therefore, did not err in dispensing
with the results of the NBI laboratory examination of Khazi Mae's underwear to determine the
presence of male semen, a fact of little relevance after the rape was established by definitive legal
evidence.

Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same occasion. As we
observed in People v. Yu,34 unity of thought and action in the criminal purpose of the accused cannot
be altered by the circumstances that both the crime of rape and the crime of murder resulted. The
accused had to choke and strangle the girl at the same time that he was satisfying his lust on her.35

Based on all of the foregoing, it is clear and inescapable that appellant committed the heinous crime
or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:

Art. 335 of the same Code is hereby amended to read as follows:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

xxx xxx xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

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

xxx xxx xxx

(4) When the victim is a religious or a child below seven (7) years old.
 xxx xxx xxx

Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused with
the crime of subject to our automatic review, it is painfully clear — even to those who have
reservations about imposing the death penalty among us — that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death in this case.

Convictions for the crime of rape have been sustained by this Court in an overwhelming number of
cases on uncorroborated evidence given almost exclusively by the complainant alone. Against this
backdrop (of most cases of rape where reliance is placed solely on the victims allegations) the trial
Court in the case at bench, arrived at its conclusions principally on the basis of two key pieces of
testimonial evidence: 1) the accused's admission of guilt in not one but two occasions in open court
(in the presence of his lawyer) even after being warned on both occasions by the judge of all the
possible consequences of his admission the accused's admission of guilt; and 2) the essentially
uncontradicted testimony of an eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony — which the defense spiritedly tried to magnify — the net
effect of the same was to enhance, not diminish, the testimony of the lone eyewitness because
minor incongruencies are on the whole indicative of honest and unrehearsed declarations and often
amplify the credibility of such declarations. 36 Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one of these testimonies,
standing alone, would have been adequate to obtain the accused's conviction.

In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the death
penalty for specific offenses under Republic Act 7659 has left our courts with no choice but to
impose the penalty for crimes clearly enumerated in the said law. If a court, after leaving no stone
unturned, finds it necessary to impose the penalty, I believe that it does not do so as an infallible
God exercising a divine right to give or take away human life, but as a fallible human institution
recognizing the importance of according majesty to laws so indispensable to maintaining social
order. In the instant case, after a thorough and searching review of the evidence and an evaluation
of the procedural and constitutional objections adduced either in support of an acquittal or of
imposing a less severe penalty it should be fairly obvious to us that the trial court committed no error
in finding the accused guilty as charged. Recognizing our fallible nature, the quantum of evidence
necessary to convict has never been absolute proof beyond any doubt but merely proof beyond
reasonable doubt. The death penalty in the instant case was clearly imposed in conformity with the
mandate of law and the Constitution.

Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ

EN BANC

August 15, 2017

G.R. No. 226679

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi
City, Albay, and PEOPLE OF THE PHILIPPINES, Respondents.
 DECISION

PERALTA, J.:

Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of
Republic Act (R.A.)No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which
provides:

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless
of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.3

The facts are not in dispute.

Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for
violation of Section 11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information
alleged:

That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to
possess or otherwise use any regulated drug and without the corresponding license or prescription,
did then and there, willfully, unlawfully and feloniously have, in his possession and under his control
and custody, one (1) piece heat-sealed transparent plastic sachet marked as VOP 03/21/16- l G
containing 0.084 [gram] of white crystalline substance, which when examined were found to be
positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.

CONTRARY TO LAW.4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining
Agreement,5 praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation
of Section 12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-
time offender and the minimal quantity of the dangerous drug seized in his possession. He argued
that Section 23 of R.A. No. 9165 violates: (1) the intent of the law expressed in paragraph 3, Section
2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the
1987 Constitution; and (3) the principle of separation of powers among the three equal branches of
the government.

In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the
motion for being contrary to Section 23 of R.A. No. 9165, which is said to be justified by the
Congress' prerogative to choose which offense it would allow plea bargaining. Later, in a Comment
or Opposition7 dated June 29, 2016, it manifested that it "is open to the Motion of the accused to
enter into plea bargaining to give life to the intent of the law as provided in paragraph 3, Section 2 of
[R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165 prohibiting plea
bargaining, [it] is left without any choice but to reject the proposal of the accused."

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3,
Legazpi City, Albay, issued an Order denying Estipona's motion. It was opined:

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining,
encroaches on the exclusive constitutional power of the Supreme Court to promulgate rules of
procedure because plea bargaining is a "rule of procedure." Indeed, plea bargaining forms part of
the Rules on Criminal Procedure, particularly under Rule 118, the rule on pre-trial conference. It is
only the Rules of Court promulgated by the Supreme Court pursuant to its constitutional rule-making
power that breathes life to plea bargaining. It cannot be found in any statute.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional
because it, in effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows
plea bargaining as part of the mandatory pre-trial conference in criminal cases.

The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A.
No. 9165, to rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases
of use of illegal drugs because plea bargaining is disallowed. However, by case law, the Supreme
Court allowed rehabilitation for accused charged with possession of paraphernalia with traces of
dangerous drugs, as held in People v. Martinez, G.R. No. 191366, 13 December 2010. The ruling of
the Supreme Court in this case manifested the relaxation of an otherwise stringent application of
Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate
the offender.

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the
declaration of Sec. 23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because
indeed the inclusion of the provision in the law encroaches on the exclusive constitutional power of
the Supreme Court.

While basic is the precept that lower courts are not precluded from resolving, whenever warranted,
constitutional questions, the Court is not unaware of the admonition of the Supreme Court that lower
courts must observe a becoming modesty in examining constitutional questions. Upon which
admonition, it is thus not for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional
given the potential ramifications that such declaration might have on the prosecution of illegal drug
cases pending before this judicial station.8

Estipona filed a motion for reconsideration, but it was denied in an Order9 dated July 26, 2016;
hence, this petition raising the issues as follows:

I.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING
IN ALL VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
THE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.

II.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT

ENCROACHED UPON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF
PROCEDURE.

III.

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO,

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165
AS UNCONSTITUTIONAL.10
We grant the petition.

PROCEDURAL MATTERS

The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the
petition should be dismissed outright for being procedurally defective on the grounds that: (1) the
Congress should have been impleaded as an indispensable party; (2) the constitutionality of Section
23 of R.A. No. 9165 cannot be attacked collaterally; and (3) the proper recourse should have been a
petition for declaratory relief before this Court or a petition for certiorari before the RTC. Moreover,
the OSG argues that the petition fails to satisfy the requisites of judicial review because: (1) Estipona
lacks legal standing to sue for failure to show direct injury; (2) there is no actual case or controversy;
and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the case.

On matters of technicality, some points raised by the OSG maybe correct. Nonetheless, without
1âw phi 1

much further ado, it must be underscored that it is within this Court's power to make exceptions to
the rules of court. Under proper conditions, We may permit the full and exhaustive ventilation of the
parties' arguments and positions despite the supposed technical infirmities of a petition or its alleged
procedural flaws. In discharging its solemn duty as the final arbiter of constitutional issues, the Court
shall not shirk from its obligation to determine novel issues, or issues of first impression, with far-
reaching implications.11

Likewise, matters of procedure and technicalities normally take a backseat when issues of
substantial and transcendental importance are present.12 We have acknowledged that the
Philippines' problem on illegal drugs has reached "epidemic," "monstrous," and "harrowing"
proportions,13 and that its disastrously harmful social, economic, and spiritual effects have broken the
lives, shattered the hopes, and destroyed the future of thousands especially our young citizens.14 At
the same time, We have equally noted that "as urgent as the campaign against the drug problem
must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the
accused as mandated by the Constitution x x x who, because of excessive zeal on the part of the
law enforcers, may be unjustly accused and convicted."15 Fully aware of the gravity of the drug
menace that has beset our country and its direct link to certain crimes, the Court, within its sphere,
must do its part to assist in the all-out effort to lessen, if not totally eradicate, the continued presence
of drug lords, pushers and users.16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should
not deter Us from having to make the final and definitive pronouncement that everyone else depends
for enlightenment and guidance.17 When public interest requires, the Court may brush aside
procedural rules in order to resolve a constitutional issue.18

x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a
necessary complement of its power to promulgate the same. Barnes v. Hon. Quijano
Padilla discussed the rationale for this tenet, viz. :

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be
eschewed. Even the Rules of Court reflect this principle. The power to suspend or even disregard
rules can be so pervasive and compelling as to alter even that which this Court itself has already
declared to be final, x x x.

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity
for the proper and just determination of his cause, free from the constraints of technicalities. Time
and again, this Court has consistently held that rules must not be applied rigidly so as not to override
substantial justice. 19

SUBSTANTIVE ISSUES

Rule-making power of the Supreme

Court under the 1987 Constitution

Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and
no longer shared with the Executive and Legislative departments.20 In Echegaray v. Secretary of
Justice, 21 then Associate Justice (later Chief Justice) Reynato S. Puno traced the history of the
Court's rule-making power and highlighted its evolution and development.

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure
was granted by our Constitutions to this Court to enhance its independence, for in the words of
Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so
essential to the maintenance of their vigor as champions of justice." Hence, our Constitutions
continuously vested this power to this Court for it enhances its independence. Under the 1935
Constitution, the power of this Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with legislative power for it was subject to
the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading,
practice and procedure in all courts, and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and
are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the
same. The Congress shall have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the Philippines."

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re:
Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 which considered as a
passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and
71 % in the 1952 bar examinations. This Court struck down the law as unconstitutional. In
his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a judgment
- a judgment promulgated by this Court during the aforecited years affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these departments would be a clear usurpation of its
function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the
Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:

xxxx

"Sec. 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxxx

"Section 5. The Supreme Court shall have the following powers:

xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the .first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. x x x.22

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court.Section 5 (5), Article VIII of the 1987 Constitution reads:

xxxx

In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935 and 1973 Constitutions, had been priorly subjected to a power-
sharing scheme with Congress. As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying
in one body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a
" [ s] tronger and more independent judiciary."

The records of the deliberations of the Constitutional Commission would show that the Framers
debated on whether or not the Court's rulemaking powers should be shared with Congress. There
was an initial suggestion to insert the sentence "The National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the Supreme Court," right after the
phrase "Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme
Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead,
after the word "[under]privileged," place a comma(,) to be followed by "the phrase with the
concurrence of the National Assembly." Eventually, a compromise formulation was reached
wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the
phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his
proposal to add "the phrase with the concurrence of the National Assembly." The changes were
approved, thereby leading to the present lack of textual reference to any form of
Congressional participation in Section 5 (5), Article VIII, supra. Theprevailing consideration
was that "both bodies, the Supreme Court and the Legislature, have their inherent powers."

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure.x x x.24

The separation of powers among the three co-equal branches of our government has erected an
impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure
within the sole province of this Court.25 The other branches trespass upon this prerogative if they
enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules
promulgated by the Court.26 Viewed from this perspective, We have rejected previous attempts on
the part of the Congress, in the exercise of its legislative power, to amend the Rules of
Court (Rules), to wit:

1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an
administrative disciplinary case should be taken to the Court of Appeals under the provisions of Rule
43 of the Rulesinstead of appeal by certiorari under Rule 45 as provided in Section 27 of R.A. No.
6770.
2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative
Code provisions on notices cannot replace the rules on summons under Rule 14 of the Rules.

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio
Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In
Re: Exemption of the National Power Corporation from Payment of Filing/Docket Fees; 31 and Rep. of
the Phils. v. Hon. Mangotara, et al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and
NPC are not exempt from the payment of legal fees imposed by Rule 141 of the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A.
No. 6770, which prohibits courts except the Supreme Court from issuing temporary restraining order
and/or writ of preliminary injunction to enjoin an investigation conducted by the Ombudsman, is
unconstitutional as it contravenes Rule 58 of the Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion
to amend, repeal or even establish new rules of procedure, to the exclusion of the legislative and
executive branches of government. To reiterate, the Court's authority to promulgate rules on
pleading, practice, and procedure is exclusive and one of the safeguards of Our institutional
independence.34

Plea bargaining in criminal cases

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940,
when the 1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:

SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the
fiscal, may plead guilty of any lesser offense than that charged which is necessarily included in the
offense charged in the complaint or information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under
Rule 118 (Pleas). Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the
1âwphi1

provision on plea of guilty to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and
the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether
or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction
than the trial court. No amendment of the complaint or information is necessary. (4a, R-118)

As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial.
Section 2, Rule 118 mandated:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

(c) Marking for identification of evidence of the parties;

(d) Waiver of objections to admissibility of evidence; and

(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained,
Section 2, Rule 116 was modified in 1987. A second paragraph was added, stating that "[a]
conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of
double jeopardy."

When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of
the Rules was substantially adopted. Section 2 of the law required that plea bargaining and other
matters36 that will promote a fair and expeditious trial are to be considered during pre-trial conference
in all criminal cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court,
Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:

RULE 116 (Arraignment and Plea):

SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by

the Sandiganbayan,Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within
thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial
conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense;
and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the
case. (Sec. 2 & 3, Cir. 38-98)

Plea bargaining is a rule of procedure

The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the
preservation of substantive rights, i.e., the former should not diminish, increase or modify the
latter.38 "Substantive law is that part of the law which creates, defines and regulates rights, or which
regulates the right and duties which give rise to a cause of action; that part of the law which courts
are established to administer; as opposed to adjective or remedial law, which prescribes the method
of enforcing rights or obtain redress for their invasions."39 Fabian v. Hon. Desierto40 laid down the test
for determining whether a rule is substantive or procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are
procedural, hence within the scope of this Court's rule-making power, and those which are
substantive. In fact, a particular rule may be procedural in one context and substantive in another. It
is admitted that what is procedural and what is substantive is frequently a question of great difficulty.
It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within
the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule
really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for a disregard or infraction of them.
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights.
For example, in People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was
held as a special procedural limitation qualifying the right of the State to prosecute, making the time-
bar an essence of the given right or as an inherent part thereof, so that its expiration operates to
extinguish the right of the State to prosecute the accused.43Speaking through then Associate Justice
Romeo J. Callejo, Sr., the Court opined:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the
accused and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in
fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly
and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It
took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar
fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice. The petitioners failed to show a manifest
shortness or insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of the Rules and approved by
the Court en banc primarily to enhance the administration of the criminal justice system and the
rights to due process of the State and the accused by eliminating the deleterious practice of trial
courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused
or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such
revival by the public prosecutor. There were times when such criminal cases were no longer revived
or refiled due to causes beyond the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the
accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings.
It is almost a universal experience that the accused welcomes delay as it usually operates in his
favor, especially if he greatly fears the consequences of his trial and conviction. He is hesitant to
disturb the hushed inaction by which dominant cases have been known to expire.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of
the State to prove its case with the disappearance or nonavailability of its witnesses. Physical
evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage
of time makes proof of any fact more difficult. The accused may become a fugitive from justice or
commit another crime. The longer the lapse of time from the dismissal of the case to the revival
thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate
a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not
derail, the chances of the accused for employment, curtail his association, subject him to public
obloquy and create anxiety in him and his family. He is unable to lead a normal life because of
community suspicion and his own anxiety. He continues to suffer those penalties and disabilities
incompatible with the presumption of innocence. He may also lose his witnesses or their memories
may fade with the passage of time. In the long run, it may diminish his capacity to defend himself
and thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the
accused only.44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which
provides that an accused who failed to appear at the promulgation of the judgment of conviction
shall lose the remedies available against the judgment, does not take away substantive rights but
merely provides the manner through which an existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted
accused to avail of the remedies under the Rules. It is the failure of the accused to appear without
justifiable cause on the scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment.

It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the
substantive rights of petitioners. It only works in pursuance of the power of the Supreme Court to
"provide a simplified and inexpensive procedure for the speedy disposition of cases." This provision
protects the courts from delay in the speedy disposition of criminal cases - delay arising from the
simple expediency of nonappearance of the accused on the scheduled promulgation of the judgment
of conviction.46

By the same token, it is towards the provision of a simplified and inexpensive procedure for the
speedy disposition of cases in all courts47 that the rules on plea bargaining was introduced. As a way
of disposing criminal charges by agreement of the parties, plea bargaining is considered to be an
"important," "essential," "highly desirable," and "legitimate" component of the administration of
justice.48 Some of its salutary effects include:

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and
limiting the probable penalty are obvious - his exposure is reduced, the correctional processes can
begin immediately, and the practical burdens of a trial are eliminated. For the State there are also
advantages - the more promptly imposed punishment after an admission of guilt may more
effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and
prosecutorial resources are conserved for those cases in which there is a substantial issue of the
defendant's guilt or in which there is substantial doubt that the State can sustain its burden of
proof. (Brady v. United States, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of
most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial
confinement for those who are denied release pending trial; it protects the public from those accused
persons who are prone to continue criminal conduct even while on pretrial release; and, by
shortening the time between charge and disposition, it enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately imprisoned. (Santobello v. New York, 404 U.S. 257,
261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial;
he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in
realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital
and scarce resources. The public is protected from the risks posed by those charged with criminal
offenses who are at large on bail while awaiting completion of criminal proceedings. (Blackledge v.
Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the
prosecution work out a mutually satisfactory disposition of the case subject to court
approval."49 There is give-and-take negotiation common in plea bargaining.50 The essence of the
agreement is that both the prosecution and the defense make concessions to avoid potential
losses.51 Properly administered, plea bargaining is to be encouraged because the chief virtues of the
system - speed, economy, and finality - can benefit the accused, the offended party, the prosecution,
and the court.52

Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a
right nor take away a vested right. Instead, it operates as a means to implement an existing right by
regulating the judicial process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction of them.

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the
prosecution's case against him and by the apparent likelihood of securing leniency should a guilty
plea be offered and accepted.54 In any case, whether it be to the offense charged or to a lesser
crime, a guilty plea is a "serious and sobering occasion" inasmuch as it constitutes a waiver of the
fundamental rights to be presumed innocent until the contrary is proved, to be heard by himself and
counsel, to meet the witnesses face to face, to bail (except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond reasonable
doubt, and not to be compelled to be a witness against himself.55

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him
rather than accepting a plea of guilty; the prosecutor need not do so if he prefers to go to
trial.56 Under the present Rules, the acceptance of an offer to plead guilty is not a demandable right
but depends on the consent of the offended party57and the prosecutor, which is a condition precedent
to a valid plea of guilty to a lesser offense that is necessarily included in the offense charged.58 The
reason for this is that the prosecutor has full control of the prosecution of criminal actions; his duty is
to always prosecute the proper offense, not any lesser or graver one, based on what the evidence
on hand can sustain.59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for
judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to
assessing the strength and importance of a case, prosecutors also must consider other tangible and
intangible factors, such as government enforcement priorities. Finally, they also must decide how
best to allocate the scarce resources of a criminal justice system that simply cannot accommodate
the litigation of every serious criminal charge. Because these decisions "are not readily susceptible
to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to
examine the decision whether to prosecute. "60

The plea is further addressed to the sound discretion of the trial court, which may allow the accused
to plead guilty to a lesser offense which is necessarily included in the offense charged. The
word may denotes an exercise of discretion upon the trial court on whether to allow the accused to
make such plea.61 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense
than that actually charged is not supposed to be allowed as a matter of bargaining or compromise
for the convenience of the accused.62

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the
prosecution already rested its case.63 As regards plea bargaining during the pre-trial stage, the trial
court's exercise of discretion should not amount to a grave abuse thereof.64 "Grave abuse of
discretion" is a capricious and whimsical exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in an arbitrary and despotic manner because of passion or hostility; it arises
when a court or tribunal violates the Constitution, the law or existing jurisprudence.65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the
prosecution rested its case, the rules allow such a plea only when the prosecution does not have
sufficient evidence to establish the guilt of the crime charged.66 The only basis on which the
prosecutor and the court could rightfully act in allowing change in the former plea of not guilty could
be nothing more and nothing less than the evidence on record. As soon as the prosecutor has
submitted a comment whether for or against said motion, it behooves the trial court to assiduously
study the prosecution's evidence as well as all the circumstances upon which the accused made his
change of plea to the end that the interests of justice and of the public will be served.67 The ruling on
the motion must disclose the strength or weakness of the prosecution's evidence.68 Absent any
finding on the weight of the evidence on hand, the judge's acceptance of the defendant's change of
plea is improper and irregular.69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the
constitutional right to equal protection of the law in order not to preempt any future discussion by the
Court on the policy considerations behind Section 23 of R.A. No. 9165. Pending deliberation on
whether or not to adopt the statutory provision in toto or a qualified version thereof, We deem it
proper to declare as invalid the prohibition against plea bargaining on drug cases until and unless it
is made part of the rules of procedure through an administrative circular duly issued for the purpose.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act
No. 9165 is declared unconstitutional for being contrary to the rule-making authority of the Supreme
Court under Section 5(5), Article VIII of the 1987 Constitution.

SECOND DIVISION
G.R. Nos. 146368-69 October 23, 2003

MADELEINE MENDOZA-ONG, petitioner,

vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

RESOLUTION

QUISUMBING, J.:

This special civil action for certiorari assails Sandiganbayan Resolution1 dated May 8, 2000, denying
petitioner’s Motion to Quash2 the Information in Criminal Case No. 23848, for violation of Section 3(c)
of R.A. No. 3019,3 as amended. Petitioner also impugns said court’s Resolution4 dated November 9,
2000, denying her Motion for Reconsideration.

The facts of the case, as culled from the records, are as follows:

Sometime in February 1993, the Sangguniang Bayan of Laoang, Northern Samar, passed
Resolution No. 93-132,5authorizing the municipality to borrow heavy equipment from the Philippine
Army’s 53rd Engineering Battalion, to be utilized in the improvement of Laoang’s Bus Terminal.
Resolution No. 93-132 likewise mandated the municipal government to shoulder the expenses for
fuel, oil, and the subsistence allowances of the heavy equipment operators for the duration of the
project.

Allegedly, however, the borrowed Army equipment was diverted by the petitioner, who was then the
town mayor6 of Laoang, to develop some of her private properties in Rawis, Laoang, Northern
Samar. A concerned citizen and ex-member of the Sangguniang Bayan of Laoang, Juanito G. Poso,
Sr., filed a complaint against petitioner and nine (9) other municipal officers7 with the Office of the
Ombudsman (OMB), Visayas, for violation of the Anti-Graft and Corrupt Practices Act.

Acting on the complaint, Graft Investigation Officer Alfonso S. Sarmiento of the OMB ordered herein
petitioner and her co-accused to submit their respective counter-affidavits and other controverting
evidence. Thereafter, in a Resolution8 dated August 16, 1995, investigator Sarmiento recommended
the filing of the appropriate criminal action against petitioner for violation of Sections 3(c) and (e) of
R.A. 3019, as amended.9 Despite strenuous opposition and objections by the defense, on August 1,
1997, two informations were filed against her at the Sandiganbayan docketed as Criminal Cases
Nos. 23847 and 23848, to wit:

(1) Criminal Case No. 23847

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern
Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-
Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein
charged in relation to, while in the performance and taking advantage of her official functions, did
then and there willfully, unlawfully and criminally, through manifest partiality and evident bad faith,
cause undue injury to the Government and give unwarranted benefits, advantage or preference to
herself and spouses Mr. and Mrs. Chupo Lao when she, in the discharge of her official or
administrative functions, caused the improvement or development of her private land in Barangay
Rawis through the use of the equipment and resources of the Philippine Army, to the damage and
prejudice of the Government.
CONTRARY TO LAW.10

This, however, was amended on October 27, 1998, so that Criminal Case No. 23847 would read as
follows:

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern
Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-
Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein
charged in relation to, while in the performance and taking advantage of her official functions, did
then and there willfully, unlawfully and criminally, through manifest partiality and evident bad faith,
cause undue injury to the Government and give unwarranted benefits, advantage or preference
to her husband, Hector Ong, herself, and/or her family and to spouses Mr. and Mrs. Chupo Lao
when she, in the discharge of her official or administrative functions, caused the improvement or
development of a private land owned by her husband, Hector Ong, herself and/or her family in
Barangay Rawis through the use of the equipment and resources of the Philippine Army, to the
damage and prejudice of the Government.

CONTRARY TO LAW.11

(2) Criminal Case No. 23848

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern
Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-
Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein
charged in relation to, while in the performance and taking advantage of her official functions, did
then and there willfully, unlawfully and criminally, request or receive, directly or indirectly, a gift,
present or other pecuniary or material benefit in the form of five (5) drums of diesel fuel, for herself or
for another from the spouses Mr. and Mrs. Chupo Lao, persons for whom accused Mendoza-Ong, in
any manner or capacity, has secured or obtained, or will secure or obtain, any Municipal
Government permit or license anent the operation of the bus company, JB Lines, owned by the
aforenamed spouses, in consideration for the help given or to be given by the accused.

CONTRARY TO LAW.12

On September 15, 1999, petitioner filed a Motion to Quash with the Sandiganbayan alleging in the
main that: (1) the informations especially in Criminal Case No. 23848, failed to allege facts
constituting an offense; (2) that the officer who filed the information has no authority to do so; and (3)
that the accused was deprived of her right to due process and to the speedy disposition of cases
against her.

On May 8, 2000, the Sandiganbayan denied petitioner’s Motion to Quash. Petitioner duly moved for
1aw phi 1.nét

reconsideration but this was likewise denied by the Sandiganbayan in its order dated November 9,
2000.

Hence, the instant petition with assigned errors faulting respondent court as follows:

I. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OF JURISDICTION WHEN IT FAILED TO DISMISS THE INFORMATIONS FILED AGAINST
PETITIONER WHICH CLEARLY DO NOT ALLEGE SUFFICIENT FACTS CONSTITUTING THE
OFFENSE HENCE FAILING TO ALLEGE A PRIMA FACIE CASE AGAINST PETITIONER,
ACCUSED THEREIN.
II. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT DENIED
PETITIONER’S MOTION TO QUASH THE INFORMATIONS FILED BY AN OFFICER WHO HAS
NO AUTHORITY TO DO SO AND DESPITE THE FACT THAT THE HEAD OF THE
PROSECUTION DIVISION OF RESPONDENT COURT HAD RECOMMENDED THE DISMISSAL
OF SAID CASES.

III. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT REFUSED
TO DISMISS THE INFORMATIONS AGAINST ACCUSED WHO HAD BEEN DEPRIVED OF DUE
PROCESS AND SPEEDY DETERMINATION OF THE CASE IN CLEAR DISREGARD OF THIS
HONORABLE COURT’S RULINGS THAT INORDINATE DELAY IN THE CONDUCT OF
PRELIMINARY INVESTIGATIONS WOULD WARRANT DISMISSAL OF THE CASE.13

Simply put, we find that the sole issue for resolution now is whether the Sandiganbayan gravely
erred or gravely abused its discretion in denying the Motion to Quash filed by petitioner, particularly
on the ground that the information in Criminal Case No. 23848 does not constitute an offense. The
other assigned errors are, in our view, without sufficient merit and deserve no further consideration.

Petitioner claims that in a criminal prosecution for violation of Section 3(c) of R.A. 3019 as amended,
the law requires that the gift received should be "manifestly excessive" as defined by Section 2(c) of
the same Act. She adds that it is imperative to specify the exact value of the five drums of diesel fuel
allegedly received by Mayor Ong as public officer to determine whether such is "manifestly
excessive" under the circumstances.14

The fundamental test of the viability of a motion to quash on the ground that the facts averred in the
information do not amount to an offense is whether the facts alleged would establish the essential
elements of the crime as defined by law. In this examination, matters aliunde are not considered.15

Petitioner is charged specifically with violation of Section 3(c) of Republic Act No. 3019, as
amended. The pertinent portions of said law provide:

SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.

Based on the foregoing, the elements of the offense charged in the assailed information are as
follows: (1) the offender is a public officer; (2) he has secured or obtained, or would secure or obtain,
for a person any government permit or license; (3) he directly or indirectly requested or received
from said person any gift, present or other pecuniary or material benefit for himself or for another;
and (4) he requested or received the gift, present or other pecuniary or material benefit in
consideration for help given or to be given.16
In the instant case, we find that the information in Crim. Case No. 23848 alleged that: (1) accused
Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, (2) committed
the crime charged in relation to, while in the performance and taking advantage of her official
functions, (3) did request or receive directly or indirectly, a gift, present or other pecuniary or material
benefit in the form of five drums of diesel fuel, for herself or for another, from spouses Mr. and Mrs.
Chupo Lao, persons for whom accused Mendoza-Ong, (4) has secured or obtained, or will secure or
obtain, a Municipal Government permit or license anent the operation of the bus company, JB Lines,
owned by said spouses, in consideration for help given or to be given by the accused. After
considering thoroughly this averment as formulated by the prosecution, we are not prepared to say
that the impugned information omitted an element needed to adequately charge a violation of
Section 3(c) of R.A. 3019.

Petitioner pleads that the pertinent statute must be read in its entirety. She argues that a provision of
R.A. 3019 such as Section 3(c) must be interpreted in light of all other provisions, particularly the
definition of "receiving any gift," under Section 2(a) thereof, which reads as follows:

SEC. 2. Definition of terms.- As used in this Act, the term –

(c) "Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other
than a member of the public officer’s immediate family, in behalf of himself or of any member of his
family or relative within the fourth civil degree, either by consanguinity or affinity, even on the
occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the
circumstances manifestly excessive.

Petitioner contends that pursuant to her reading of the above provision, the value of the alleged gift
must be specified in the information. But note that Section 2(c) abovecited mentions a situation
where (1) the value of the gift is manifestly excessive; (2) from a person who is not a member of the
public officer’s immediate family; and (3) even on the occasion of a family celebration or national
festivity.

In contrast, Section 3 (c) earlier quoted in the present case applies regardless of whether the gift’s
value is manifestly excessive or not, and regardless of the occasion. What is important here, in our
view, is whether the gift is received in consideration for help given or to be given by the public officer.
The value of the gift is not mentioned at all as an essential element of the offense charged under
Section 3 (c), and there appears no need to require the prosecution to specify such value in order to
comply with the requirements of showing a prima facie case.

Evidently the legislature is aware that in implementing R.A. 3019, it will be precedents that will guide
the court on the issue of what is or what is not manifestly excessive.17

In sum, we are constrained to rule that respondent court did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction, much less did it gravely err, in denying petitioner’s motion
to quash the information filed against her in Criminal Case No. 23848. This ruling, however, is
without prejudice to the actual merits of this criminal case as may be shown during trial before the
court a quo.

WHEREFORE, the petition is hereby DISMISSED. The assailed resolutions of the Sandiganbayan in
Criminal Case No. 23848 are AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Bellosillo, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

SECOND DIVISION

G.R. No. 214925, April 26, 2017

JOHN LABSKY P. MAXIMO AND ROBERT M. PANGANIBAN, Petitioners, v. FRANCISCO Z.

VILLAPANDO, JR., Respondents.

G.R. No. 214965, April 26, 2017

FRANCISCO Z. VILLAPANDO, JR., Petitioners, v. MAKATI CITY PROSECUTION OFFICE, JOHN

LABSKY P. MAXIMO AND ROBERT M. PANGANIBAN, Respondents.

DECISION

PERALTA, J.:

Before us are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court assailing the
Decision1 dated June 13, 2014, and Resolution2 dated October 16, 2014 of the Court of Appeals (CA) in CA-
G.R. SP No. 131085 which reversed the Decision3 dated May 30, 2013 of the Regional Trial Court (RTC),
Branch 150, Makati City in Special Civil Action No. 13-473. The RTC affirmed the Order4 of the Metropolitan
Trial Court (METC), Branch 67, Makati City denying the Motion to Quash filed by petitioner Francisco Z.
Villapando, Jr. (Villapando).

The factual antecedents are as follows:

Villapando is the assignee of Enhanced Electronics and Communications Services, Inc. of Condominium Unit
No. 2821 and parking slot at the Legazpi Place in Makati City. Petitioners John Labsky P. Maximo (Maximo)
and Robert M. Panganiban (Panganiban) are Directors of ASB Realty Corporation (now, St. Francis Square
Realty Corp.), the developer of the said condominium unit.5

On November 23, 2010, Villapando filed before the Office of the City Prosecutor of Makati City (OCP-Makati),
a complaint6 against Maximo and Panganiban and other directors/officers of ASB Realty Corp. (ASB) for
Violation of Sections 17,7 208 and 259 of Presidential Decree (P.D.) No. 957, otherwise known as
the Subdivision and Condominium Buyer's Protective Decree.

Villapando alleged in his complaint that there was failure on the part of Maximo and Panganiban and the
other directors/officers of ASB to comply with PD No. 957 relative to the registration of contracts to sell and
deeds of sale (Sec. 17), time of completion (Sec. 20) and issuance of title (Sec. 25) with respect to the
aforementioned condominium unit.

The said criminal complaint for Violation of Sections 17, 20 and 25 was dismissed by the OCP-Makati in its
Resolution10 dated July 12, 2011 on the ground that prior to the estimated date of completion of the
condominium unit, ASB encountered liquidity problems and instituted a petition for rehabilitation with the
Securities and Exchange Commission (SEC) which showed good faith on the part of ASB.11

On February 24, 2011, Maximo instituted a Complaint12 for Perjury, Incriminating Innocent Person and
Unjust Vexation against Villapando docketed as NPS-No. XV-05-INV-11-B-00509. The complaint was
assigned to Assistant City Prosecutor (ACP) Evangeline Viudez-Canobas.13
On October 10, 2011, Panganiban also filed a Complaint14 for Perjury and Unjust Vexation against Villapando
docketed as NPS-No. XV-05-INV-11-C-00601. The complaint was assigned to ACP Benjamin S. Vermug, Jr.15

The common allegation in the complaints of Maximo and Panganiban was that Villapando committed perjury
when the latter alleged in the complaint he filed against them that they were officers and directors of ASB at
the time the Deed of Sale was executed between ASB and Enhanced Electronics on February 28, 1997. They
claimed that they were not even employees of ASB in 1997 as they were both minors at that time.

After the filing of the Counter-Affidavit,16 Reply-Affidavit,17 and Rejoinder-Affidavit,18 ACP Canobas issued a
Resolution19 (Canobas Resolution) on August 3, 2011 finding probable cause against Villapando for the crime
of perjury but dismissed the complaints for unjust vexation and incriminating innocent person. The
Resolution was approved20 by Senior Assistant City Prosecutor (SACP) Christopher Garvida.

Accordingly, on August 15, 2011, an Information21 dated July 26, 2011 for Perjury was filed against
Villapando before Branch 67 of the METC, Makati City. The Information was signed by ACP Canobas and
sworn to before ACP Benjamin S. Vermug, Jr.

Meanwhile, on August 31, 2011,Villapando filed a Motion for Partial Reconsideration22 of the Canobas
Resolution before the OCP-Makati alleging that the Information was filed without the prior written authority
of the City Prosecutor. He also stated that violations of Sections 17, 20 and 25 are committed not at the
time of the execution of the contract to sell but after the execution of the contract, and that there is no
allegation in his complaint-affidavit that Maximo was part of the "scheme in the execution of the contract to
sell."

Pending resolution of the aforesaid motion for partial reconsideration, a warrant of arrest against Villapando
was issued by the METC.23 On October 14, 2011, Villapando filed a Motion to Quash Information24 alleging
that the person who filed the Information had no authority to do so. He asserted that the Information, as
well as the Resolution finding probable cause against him, did not bear the approval of the City Prosecutor of
Makati, Feliciano Aspi, which is contrary to Section 4 of Rule 112 of the Rules of Court.

On October 20, 2011, Villapando filed a Supplemental Motion to Quash Information25 on the ground that the
facts charged do not constitute an offense. According to Villapando, violations of Sections 17, 20 and 25 of
P.D. No. 957 are continuing crimes, hence, the allegations in the Information do not constitute an offense
and a quashal of the same is warranted.

After the filing of the Consolidated Opposition26 by Maximo and Panganiban, as well as the Reply27thereto
filed by Villapando, the METC denied the Motion to Quash in an Order28 dated November 11, 2011. The
METC ruled that the presumption of regularity in the performance of official functions should be appreciated
in favor of the public prosecutors. It found that the certification by ACP Canobas in the Information stating
that the filing of the Information was with the prior authority of the City Prosecutor constitutes substantial
compliance with the rules. As to the allegation that the facts charged do not constitute an offense, the METC
held that the elements of the crime of perjury were sufficiently alleged in the Information.
The decretal portion of the METC Decision states:

WHEREFORE, considering that this case can still be heard and threshed out in a full blown trial, the Court
DENIES the Motion to Quash the Information dated October 14, 2011 and its Supplements (to Motion to
Quash Information) dated October 19, 2011.

SO ORDERED.29

Villapando moved for reconsideration30of the Order of the METC dated November 11, 2011. Maximo and
Panganiban opposed31 the motion and Villapando replied32 thereto. Also, a supplement33 to the motion was
filed on June 14, 2012.

Meanwhile, after an exchange of pleadings - counter-affidavit,34 reply-affidavit,35 and rejoinder-

affidavit,36 ACP Vermug, Jr. issued a Resolution37 (Vermug Resolution) in NPS-No. XV-05-INV-11-C-00601
on January 13, 2012 finding probable cause against Villapando for the crime of perjury but dismissed the
complaint for unjust vexation. The Resolution was approved38 by Senior Assistant City Prosecutor (SACP)
Christopher Garvida who recommended for the filing of an Amended Information before the METC to include
Panganiban as one of the complainants.

Thus, on January 19, 2012, the prosecution filed a Motion to Amend the Information and to Admit Attached
Information39 to include Panganiban as one of the complainants in the case.

At this point, for a clear reading of the subsequent procedural incidents, We separately state the
proceedings before the Department of Justice (DOJ) from the proceedings before the courts.

Proceedings before the DOJ:

As earlier stated, the Canobas Resolution pertains to the complaint for perjury filed by Maximo against
Villapando which gave rise to the filing of the Information before the MeTC, but a motion to partially
reconsider the said resolution was filed by Villapando.

On the other hand, the Vermug Resolution pertains to the complaint for perjury filed by Panganiban against
Villapando which gave rise to the filing of an Amended Information. On February 13, 2012, Villapando filed a
Motion for Partial Reconsideration40 of the Vermug Resolution before the OCP-Makati.

On February, 21, 2012, the OCP-Makati issued an Order41 denying Villapando's Motion for Partial
Reconsideration of the Canobas Resolution. The Order stated that there was prior written authority for the
City Prosecutor in filing the Information by virtue of Office Order No. 32 dated July 29, 2011. The finding of
probable cause was also affirmed. The Order was approved by City Prosecutor Feliciano Aspi.

Likewise, on March 20, 2012, the OCP-Makati issued an Order42 denying Villapando's Motion for Partial
Reconsideration43 of the Vermug Resolution. The said Order merely reiterated the ruling in the Order dated
February 21, 2012 denying the Motion for Partial Reconsideration of the Canobas Resolution. The said Order
was also approved by City Prosecutor Feliciano Aspi.

Aggrieved, Villapando filed separate petitions for review of the Canobas Resolution and the Vermug
Resolution dated March 31, 201244and May 7, 2012,45 respectively, before the DOJ. He stated in the
petitions the same allegations in his motions for partial reconsideration. In addition, he contended that there
was even no proof that Maximo and Panganiban were still minors at the time of the execution of the contract
to sell because they did not submit any birth certificate.

On November 28, 2013, a Resolution46 was issued by Prosecutor General Claro A. Arellano denying the
petitions for review filed by Villapando for failure to append to the petitions proof that a motion to suspend
proceedings has been filed in court. The copies of the resolution and the complaint affidavit were likewise
declared not verified.

Proceedings before the courts:

As previously mentioned, Villapando moved to reconsider the denial of his motion to quash the Information
before the METC. In an Order47 dated February 11, 2013, the METC denied Villapando's motion for
reconsideration thereby affirming the validity of the information, and at the same time, granted the
prosecution's Motion to Amend the Information.

The Amended Information48 was signed by ACP Evangeline P. Viudez-Canobas and sworn to before ACP
Benjamin S. Vermug, Jr.

On April 25, 2013, Villapando elevated the case to the RTC of Makati City via a Petition for Certiorari and
Prohibition (with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary
Injunction)49 assailing the Orders of the METC dated November 11, 2011 and February 11, 2013. A
Comment50 thereto was filed by Maximo and Panganiban, and a Reply to Comment51 was filed by Villapando.

Subsequently, on May 30, 2013, the RTC issued a Decision, the dispositive portion of which states, thus:
WHEREFORE, the petition is DENIED. The assailed 11 November 2011 order of respondent Judge in Crim.
Case No. 36741 which denied petitioner's Motion to Quash the Information with supplement and the order
dated February 11, 2013 which denied petitioner's Motion for Reconsideration and granted the Public
Prosecutor's motion to amend Information and admit attached amended Information are AFFIRMED.

SO ORDERED.52

The RTC ratiocinated that from the denial of the motion to quash, Villapando should have gone to trial
without prejudice to reiterating his special defenses invoked in his motion. In the event that an adverse
decision is rendered, an appeal therefrom should be the next legal step. Nonetheless, it found that the
presumption of regularity exists in the filing of the information on the basis of the certification of ACP
Canobas and ACP Vermug, Jr., coupled with the approval of the resolution by Garvida, stating that the filing
of the Information was with the prior authority of the City Prosecutor. The RTC posited that the presumption
has not been disputed by the City Prosecutor.

Undaunted, a Petition for Certiorari and Prohibition53 dated July 31, 2013 was filed by Villapando before the
CA. He raised before the CA the same issues: a) that the Information was filed without the prior written
authority of the City Prosecutor; b) that the facts charged do not constitute an offense. A comment54 on the
petition was filed by Maximo and Panganiban and a Reply55 thereto was filed by Villapando.

Before the CA, the parties filed their respective Formal Offer of Exhibits dated January 10, 2014 and January
14, 201456 for Villapando and Maximo and Panganiban, respectively.57 The parties also filed their respective
memoranda.58

On June 13, 2014, the CA rendered a Decision reversing the RTC Decision. The fallo of the CA Decision
states:

WHEREFORE, the petition is hereby GRANTED. The Decision of the Regional Trial Court of Makati City,
Branch 150, in Special Civil Action No. 13-473 is hereby REVERSED AND SET ASIDE. Criminal Case No.
367041 pending in Branch 67, Metropolitan Trial Court, Makati City is hereby DISMISSED WITHOUT
PREJUDICE to the filing of new Information by an authorized officer.

SO ORDERED.59

Despite the dismissal of the case for perjury filed against him, and considering that the dismissal was
without prejudice to the filing of a new information against him, Villapando moved for a partial
reconsideration60 of the CA Decision. Villapando argued that the CA did not resolve the second issue he
brought before it, that is, that the facts charged do not constitute an offense. A Comment61 to the motion
was filed by Maximo and Panganiban. Villapando62 replied to the comment.

On the other hand, Maximo and Panganiban, as the private complainants in the aforesaid case for perjury,
filed against Villapando also moved for reconsideration63 on the dismissal of the case by the CA. An
Opposition64 thereto was filed by Villapando.

On October 16, 2014, the motions for reconsideration filed by both parties were denied by the CA.

Subsequently, Maximo and Panganiban filed a petition for review on certiorari65 before this Court docketed
as G.R. No. 214925. Villapando followed suit and its petition66 was docketed as G.R. No. 214965.

A Motion to Consolidate67 the two cases was filed by Villapando on April 29, 2015. In this Court's
Resolution68 dated July 13, 2015, We ordered the consolidation considering that the two cases "have
common facts and are rooted in the same issues."

G.R. No. 214925

We first resolve the petition filed by Maximo and Panganiban which is anchored on the following assigned
errors:
 First Reason

THE COURT OF APPEALS COMMITTED ERROR WHEN IT TOOK COGNIZANCE OF RESPONDENT'S PETITION
FOR CERTIORARI FILED UNDER RULE 65 BECAUSE -

a. IT IS A WRONG REMEDY;

b. THE RESPONDENT'S FAILURE TO IMPLEAD THE PEOPLE OF THE PHILIPPINES, BEING AN

INDISPENSABLE PARTY, WARRANTED THE DISMISSAL OF THE PETITION:

c. THE PETITION WAS ACCOMPANIED BY A FALSE VERIFICATION.

Second Reason

THE COURT OF APPEALS ERRED WHEN IT HELD THAT THE RESPONDENT'S PETITION FOR CERTIORARI
FILED BEFORE THE REGIONAL TRIAL COURT WAS PROPERLY FILED;

Third Reason

THE COURT OF APPEALS ERRED WHEN IT HELD THAT THE RESPONDENT DID NOT COMMIT FORUM
SHOPPING DESPITE HIS FILING OF A PETITION FOR REVIEW BEFORE THE SECRETARY OF JUSTICE
INVOLVING THE SAME PARTIES, FACTS, ISSUES AND RELIEFS; and

Fourth Reason

THE COURT OF APPEALS ERRED WHEN IT HELD THAT THE TWO INFORMATIONS WERE NOT PROPERLY
FILED DESPITE THE FACT THAT THEIR FILING AS WELL AS THE RESOLUTIONS RECOMMENDING THEIR
FILING WERE MADE WITH PRIOR AUTHORITY OF THE CITY PROSECUTOR AND AFFIRMED BY THE CITY
PROSECUTOR WHEN HE SUBSEQUENTLY DENIED THE RESPONDENT'S MOTIONS FOR PARTIAL
RECONSIDERATION ON THE ASSAILED RESOLUTIONS.69

Maximo and Panganiban asserted in their petition that the denial of a petition for certiorari is a final order,
such that, the remedy of the aggrieved party on a final order is to appeal the same. Even assuming
that certiorari is available, the petition with the CA should have not been allowed for failure to file the
requisite motion for reconsideration with the RTC prior to the filing of the petition. They also argued that
since an action must be brought against indispensable parties, the instant petition should be dismissed for
failure to implead the People in the petition before the RTC and the CA.

Maximo and Panganiban further averred that Villapando committed forum shopping because the issues
raised before the CA were the same issues brought before the DOJ on a petition for review. They also
pointed out that the petition filed with the CA was prepared only on July 31, 2013, but the verification was
executed on June 20, 2013, or forty-one (41) days prior to the preparation of the petition.

Maximo and Panaganiban also contended that the Information bears the certification that the filing of the
same has the prior authority or approval of the City Prosecutor. The non-presentation of DOJ Office Order
No. 32 which was the basis of the authority in filing the Information is immaterial on the ground that public
officers enjoy the presumption of regularity in the performance of their functions. They also pointed out that
the issuance of the Order of the City Prosecutor himself denying Villapando's Partial Motion for
Reconsideration, in effect, affirmed the validity of the Information filed.70

In the Comment71 to the Petition filed by Villapando, he countered that under the circumstances of the case,
appeal is not the plain, speedy and adequate remedy in the ordinary cause of law, hence, certiorarimay
validly lie. He explained that this case stemmed from a complaint that he filed with the OCP Makati City
against Maximo and Panganiban as directors of ASB for violations of Sections 17, 20 and 25 of P.D. No. 957.
He believed that the instant complaint was merely filed in retaliation to his earlier complaint.
Villapando declared that the petition was properly verified. He stated that during the Oral Argument before
the CA on January 7, 2014, he narrated that his counsel explained to him the contents of the draft of the
petition, and the original of the verification page was earlier sent to him for his perusal and signature. After
reading the draft, he immediately signed the final form/original of the verification because he had then a
scheduled trip abroad. He also emphasized that the People was represented by the Makati City Prosecution
Office before the RTC and by the Office of the Solicitor General (OSG) before the CA, and were duly
furnished with copies of all the pleadings.

In the Reply72 of Maximo and Panganiban, they insisted that for failure to implead the People in the petition
with the CA, the CA did not acquire jurisdiction over the parties.

In the petition filed by Maximo and Villapando, the core issue for this Court's resolution relates to the
validity of the Amended Information at bar.

Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named officers therein before a complaint or
information may be filed before the courts, viz.:

Section 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause
to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutoror chief state prosecutor or the
Ombudsman or his deputy.

x x x73

Thus, as a general rule, complaints or informations filed before the courts without the prior written authority
or approval of the foregoing authorized officers render the same defective and, therefore, subject to quashal
pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:

Section 3. Grounds. The accused may move to quash the complaint or information on any of the following
grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express consent.74

In the case at bar, Villapando is charged in the Amended Information which reads:
 AMENDED INFORMATION

The undersigned Prosecutor accuses FRANCISCO Z. VILLAPANDO of the crime of perjury under THE
REVISED PENAL CODE art. 183, committed as follows:

On or about the 23rd of November 2010, in the city of Makati, the Philippines, accused, did then and there
willfully, unlawfully, feloniously and falsely subscribe and swear to a complaint-affidavit docketed as NPS No.
XV-05-INV-10K-03327 before Assistant City Prosecutor Andres N. Marcos of the Office of the City Prosecutor
at Makati, a duly appointed, qualified, and acting as such, and in which complaint, said accused subscribed
and swore to, among other things, facts known to him to be untrue, that is: complainants John Labsky P.
Maximo and Robert M. Panganiban were one of the officers of ASB Realty Corporation and/or St. Francis
Square Realty Corporation conspired with the other officers in the commission of the crime of violation of
P.D 957 for entering into the contract to sell with Enhanced Electronics & Communication Services, Inc.
involving the condominium unit and failure to register the sale and to complete the project and to deliver
the title over the unit, when in truth and in fact as the said accused very well knew at the time he swore to
and signed the said complaint that said statement appearing therein were false and untrue because at the
time when the contract to sell was made between the parties, complainants were not even an
employee/officers of the ASB Realty Corporation and was still under age, and the above false statements
were made in order to impute complainants to a crime they did not commit, to their damage and prejudice.

CONTRARY TO LAW.

(signed)
BENJAMIN S. VERMUG, JR.
Assistant City Prosecutor

I HEREBY CERTIFY that I have conducted a preliminary investigation in this case in accordance with law;
that I have, or as shown by the record, an authorized officer has personally examined complainant and
witnesses, that on the basis of sworn statements and other evidence submitted before me there is
reasonable ground to believe that the crime has been committed and that accused is probably guilty thereof,
that accused was informed of the complaint and of the evidence submitted against him and was given the
opportunity to submit controverting evidence. I further certify that the filing of this Information is with the
prior authority or approval of the City Prosecutor.

(signed)
BENJAMIN S. VERMUG, JR.
Assistant City Prosecutor

SUBSCRIBED AND SWORN to before me this 26th day of July 2011 in the City of Makati.

(signed)
EVANGELINE P. VIUDEZ-CANOBAS
Assistant City Prosecutor

Maximo and Panganiban argued in their petition that the CA erred in holding that the Information did not
comply with the rule requiring prior written authority or approval of the City or Provincial Prosecutor. They
pointed out that the Information bears the certification that the filing of the same had the prior authority or
approval of the City Prosecutor who is the officer authorized to file information in court. According to them,
there is a presumption that prior written authority or approval of the City Prosecutor was obtained in the
filing of the Information, such that, the non-presentation of Office Order No. 32, which was the alleged basis
of the authority in filing the Information, is immaterial.
In the cases of People v. Garfin,75Turingan v. Garfin,76 and Tolentino v. Paqueo,77 this Court had already
rejected similarly-worded certifications uniformly holding that, despite such certifications, the Informations
were defective as it was shown that the officers filing the same in court either lacked the authority to do so
or failed to show that they obtained prior written authority from any of those authorized officers enumerated
in Section 4, Rule 112 of the 2000 Revised Rules of Criminal Procedure.78

Therefore, there must be a demonstration that prior written delegation or authority was given by the city
prosecutor to the assistant city prosecutor to approve the filing of the information. We have recognized this
valid delegation of authority in the case of Quisay v. People,79viz.:

In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the grounds that: (a) the
City Prosecutor of Makati may delegate its authority to approve the filing of the Pabatid Sakdal pursuant to
Section 9 of RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a
Certification stating that its filing before the RTC was with the prior written authority or approval from the
City Prosecutor.

The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the City Prosecutor
the power to "[investigate and/or cause to be investigated all charges of crimes, misdemeanors and
violations of penal laws and ordinances within their respective jurisdictions, and have the necessary
information or complaint prepared or made and filed against the persons accused," he may indeed
delegate his power to his subordinates as he may deem necessary in the interest of the prosecution service.
The CA also correctly stressed that it is under the auspice of this provision that the City Prosecutor of Makati
issued OCP-Makati Office Order No. 32, which gave division chiefs or review prosecutors "authority to
approve or act on any resolution, order, issuance, other action, and any information recommended by any
prosecutor for approval," without necessarily diminishing the City Prosecutor's authority to act directly in
appropriate cases. By virtue of the foregoing issuances, the City Prosecutor validly designated SACP Hirang,
Deputy City Prosecutor Emmanuel D. Medina, and Senior Assistant City Prosecutor William Celestino T. Uy
as review prosecutors for the OCP-Makati.

In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the crime charged, was
validly made as it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP
Hirang, as evidenced by his signature therein.

In the case at bar, if indeed there was no proof of valid delegation of authority as found by the CA, We are
constrained not to accord the presumption of regularity in the performance of official functions in the filing of
the Amended Information. The CA ruling states:

x x x We scoured the records of the case and We did not find a copy of the purported Office Order No, 32
allegedly authorizing the Assistant City Prosecutor to sign in behalf of the city prosecutor. While We, too, are
not oblivious of the enormous responsibility and the heavy volume of work by our prosecutors, We believe
that such reality does not excuse them to comply with the mandatory requirement stated in our rules of
procedure. Moreover, the said Office Order No. 32 is not a matter of judicial notice, hence, a copy of the
same must be presented in order for the court to have knowledge of the contents of which. In the absence
thereof, We find that there was no valid delegation of the authority by the City Prosecutor to its Assistant
Prosecutor.80

xxxx

Applying the foregoing lessons from our jurisprudence, We certainly cannot equate the approval of the
Assistant City Prosecutor to that of his superior. Clearly, we see nothing in the record which demonstrates
the prior written delegation or authority given by the city prosecutor to the assistant city prosecutor to
approve the filing of the information.

For the lack of such prior written authority, the inescapable result is that the court did not acquire
jurisdiction over the case because there is a defect in the Information. It is for the same reason that there is
no point in compelling petitioner to undergo trial under a defective information that could never be the basis
of a valid conviction.81
Furthermore, We find untenable the argument of Maximo and Panganiban that the issuance of the Order
dated February 21, 2012, bearing the signature of the City Prosecutor, denying Villapando's Partial Motion
for Reconsideration, in effect, affirmed the validity of the Information filed.82

The case of People v. Garfin,83firmly instructs that the filing of an Information by an officer without the
requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence,
waiver, acquiescence, or even by express consent. In the said case, We lift the ruling in Villa v. Ibañez, et
al.:84

x x x Now, the objection to the respondent's actuations goes to the very foundation of the jurisdiction. It is
avalid information signed by a competent officer which, among other requisites, confers jurisdiction on the
court over the person of the accused and the subject matter of the accusation. In consonance with this view,
an infirmity in the information cannot be cured by silence, acquiescence, or even by express consent.85

An Information, when required by law to be filed by a public prosecuting officer, cannot be filed by another.
The court does not acquire jurisdiction over the case because there is a defect in the Information.86 There is
no point in proceeding under a defective Information that could never be the basis of a valid conviction.87

As to the issue raised by Maximo and Panganiban which relates to the propriety of the chosen legal
remedies availed of by Villapando in the lower courts to question the denial of his motion to quash, We find
the same untenable.

In the usual course of procedure, a denial of a motion to quash filed by the accused results in the
continuation of the trial and the determination of the guilt or innocence of the accused. If a judgment of
conviction is rendered and the lower courts' decision of conviction is appealed, the accused can then raise
the denial of his motion to quash not only as an error committed by the trial court but as an added ground
to overturn the latter's ruling.88

In this case, Villapando did not proceed to trial but opted to immediately question the denial of his motion to
quash via a special civil action for certiorari under Rule 65 of the Rules of Court.

It is also settled that a special civil action for certiorari and prohibition is not the proper remedy to assail the
denial of a motion to quash an information. The established rule is that when such an adverse interlocutory
order is rendered, the remedy is not to resort forthwith to certiorari or prohibition, but to continue with the
case in due course and, when an unfavorable verdict is handed down, to take an appeal in the manner
authorized by law.89

As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from an
interlocutory order is not allowed under Section 1(c), Rule 41 of the Rules of Court.90 Neither can it be a
proper subject of a petition for certiorari which can be used only in the absence of an appeal or any other
adequate, plain and speedy remedy. The plain and speedy remedy upon denial of an interlocutory order is to
proceed to trial as discussed above.91

Thus, a direct resort to a special civil action for certiorari is an exception rather than the general rule, and is
a recourse that must be firmly grounded on compelling reasons.92

However, on a number of occasions, We have recognized that in certain situations, certiorari is considered
an appropriate remedy to assail an interlocutory order, specifically the denial of a motion to quash. We have
recognized the propriety of the following exceptions: (a) when the court issued the order without or in
excess of jurisdiction or with grave abuse of discretion; (b) when the interlocutory order is patently
erroneous and the remedy of appeal would not afford adequate and expeditious relief; (c) in the interest of
a more enlightened and substantial justice; (d) to promote public welfare and public policy; and (e) when
the cases have attracted nationwide attention, making it essential to proceed with dispatch in the
consideration thereof.93

In grave abuse of discretion cases, certiorari is appropriate if the petitioner can establish that the lower
court issued the judgment or order without or in excess of jurisdiction or with grave abuse of discretion, and
the remedy of appeal would not afford adequate and expeditious relief. The petitioner carries the burden of
showing that the attendant facts and circumstances fall within any of the cited instances.94

In the case at bar, We find that there was a compelling reason to justify a resort to a petition
for certiorari against the Order of the METC. Villapando was able to show that the factual circumstances of
his case fall under any of the above exceptional circumstances. The METC committed grave abuse of
discretion in denying the motion to quash filed by Villapando. We adopt the ruling of the CA on this matter:

In this petition, petitioner insists that the RTC committed grave abuse of discretion in dismissing his Petition
for Certiorari despite the lack of authority to file the information from the City Prosecutor, on the basis of the
principle of "presumption of regularity". Verily, the issue raised in this Petition goes into the very authority
of the court over the case. This is because a finding of the lack of authority for the assistant prosecutor in
approving the probable cause resolution necessarily invalidates the information, and thereby ousts the court
of jurisdiction to try and decide the case.95 As will be discussed later, petitioner was able to establish the
merit of his contention.

Likewise, We cannot ignore the fact, as admitted by the private respondents, that this case stemmed from a
complaint filed by Petitioner with the Makati City Prosecution Office against private respondents, as directors
of ASB for violations of Secs. 17, 20 and 25 of PD No. 957 or the Subdivision and Condominium Buyer's
Protective Decree. Petitioner since the inception of this case, has been insistent that the criminal complaints
filed by private respondents were merely filed in retaliation of his earlier complaint.

Thus, to deny petitioner the relief of a writ of certiorari and force him to go to trial would be self-defeating.
To require Petitioner to go to the prescribed route of undergoing trial and filing an appeal thereafter, will
undoubtly expose him to the injuries which he seeks to promptly avoid by filing the instant Petition.96

As correctly held by the CA, the METC committed an error of jurisdiction, not simply an error of judgment, in
denying Villapando's motion to quash the Information as will be shown in the succeeding discussion.

Moreover, We recognize that the petition for certiorari filed by Villapando before the RTC was an original
action whose resulting decision is a final order that completely disposed of the petition. Section 2, Rule 41 of
the Rules of Court,97 states that cases decided by the RTC in the exercise of its original jurisdiction must be
appealed to the CA. Nonetheless, We have allowed exceptions for good cause that could warrant the
relaxation of the rule as in this case.98 As discussed above, the RTC gravely abuse its discretion in dismissing
the petition of Villapando thereby affirming the denial of his motion to quash before the METC. We note that
Villapando's liberty was already in jeopardy with the continuation of the criminal proceedings against him
such that a resort to a petition for certiorari is recognized.

As a rule, certiorari lies when: (1) a tribunal, board, or officer exercises judicial or quasi-judicial functions;
(2) the tribunal, board, or officer has acted without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law.99

The writ of certiorari serves to keep an inferior court within the bounds of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting to excess or lack of jurisdiction, or to relieve
parties from arbitrary acts of courts which courts have no power or authority in law to perform.100

Anent the issue on forum shopping, We held in the case of Flores v. Secretary Gonzales, et al.101 that there
is no forum shopping when a petition is filed with the CA while another petition is pending with the DOJ
Secretary, thus:

We wish to point out that, notwithstanding the pendency of the Information before the MTCC, especially
considering the reversal by the Secretary of Justice of his May 31, 2006 Resolution, a petition
for certiorari under Rule 65 of the Rules of Court, anchored on the alleged grave abuse of discretion
amounting to excess or lack of jurisdiction on the part of Secretary of Justice, was an available remedy to
Flores as an aggrieved party.
In the petition for certiorari, the Court of Appeals is not being asked to cause the dismissal of the case in the
trial court, but only to resolve the issue of whether the Secretary of Justice acted with grave abuse of
discretion in either affirming or reversing the finding of probable cause against the accused. But still the rule
stands the decision whether to dismiss the case or not rests on the sound discretion of the trial court where
the Information was filed. As jurisdiction was already acquired by the MTCC, this jurisdiction is not lost
despite a resolution by the Secretary of Justice to withdraw the information or to dismiss the case,
notwithstanding the deferment or suspension of the arraignment of the accused and further proceedings,
and not even if the Secretary of Justice is affirmed by the higher courts.

Verily, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice,
in spite of being affirmed by the appellate courts, since it is mandated to independently evaluate or assess
the merits of the case and it may either agree or disagree with the recommendation of the Secretary of
Justice. Reliance on the resolution of the Secretary of Justice alone would be an abdication of the trial courts
duty and jurisdiction to determine a prima facie case. Thus, the trial court may make an independent
assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence
appended to the Information; the records of the public prosecutor which the court may order the latter to
produce before it; or any evidence already adduced before the court by the accused at the time the motion
is filed by the public prosecutor. The trial court should make its assessment separately and independently of
the evaluation of the prosecution or of the Secretary of Justice.102

The filing of an appeal with the DOJ as well as the filing of the petition with the CA would not constitute
forum shopping for the reason that the finding of the DOJ would not be binding upon the courts. In other
words, even if the DOJ recommends dismissal of the criminal case against petitioner, such resolution would
merely be advisory, and not binding upon the courts. The DOJ ruling on the petition for review would not
constitute as res judicata on the case at bar, neither can it conflict with resolution of the court on the
propriety of dismissing the case.

Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of
seeking another and possibly favorable opinion in another forum other than by appeal or the special civil
action of certiorari. There can also be forum shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the courts to rule on the same and related
causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other
court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or
action.103

Maximo and Panganiban additionally raised the issue that the People of the Philippines was not impleaded as
a respondent in the case nor was the Office of the Solicitor General furnished a copy of the petition.

Section 5,104 Rule 110 of the Rules of Criminal Procedure states that all criminal actions are prosecuted
under the direction and control of the public prosecutor. The prosecution of offenses is thus the concern of
the government prosecutors. The purpose in impleading the People of the Philippines as respondent in the
RTC and in the CA is to enable the public prosecutor or Solicitor General, as the case may be, to comment
on the petitions.105 Evidently, in this case, the People was represented by the Makati City Prosecution Office
before the RTC and by the Office of the Solicitor General before the CA and were duly furnished with copies
of all the pleadings.

Lastly, We find in the negative the issue of whether the non-filing by Villapando of a motion for
reconsideration of the RTC Decision is fatal to his petition for certiorari,106 While a motion for reconsideration
is a condition precedent to the filing of a petition for certiorari, this Court has recognized exceptions to the
requirement and cannot unduly uphold technicalities at the expense of a just resolution of the case.107

In addition, Section 6, Rule 1 of the Rules of Court provides that rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition of every action and
proceeding. Thus, in several cases, this Court has ruled against the dismissal of petitions or appeals based
solely on technicalities. Technicalities may be set aside when the strict and rigid application of the rules will
frustrate rather than promote justice.108

The foregoing considered, We deny the petition filed by Maximo and Panganiban on the ground that, as
found by the CA, the records of the case is bereft of any showing that the City Prosecutor of Makati had
authorized ACP Benjamin S. Vermug, Jr. to file the subject Amended Information. Thus, the instant defective
Amended Information must be quashed. The CA did not err in finding grave abuse of discretion on the part
of the RTC in affirming the denial of Villapando's motion to quash the Amended Information.

G.R. No. 214965

We now turn to the petition filed by Villapando which raised the following arguments:109

I. Violations of Section 17, 20 and 25 of P.D. 957 are committed not upon the execution of the
Contract to Sell between the Developer and Buyer, but thereafter. They continue to be committed
until full compliance of the requirements and mandate of law.

II. Violations of Sections 17, 20 and 25 of P.D. 957 are continuing offenses.

III. Violations of Section 17, 20 and 25 of P.D. 957 are continuing offenses, hence, the allegations of
the Information and amended Information against petitioner do not constitute the offense charged
(perjury).

IV. The CA should not have skirted but resolved the foregoing substantial legal issues.

Villapando asserted in his petition that it was necessary for the CA to have resolved the nature of the
violation of Sections 17, 20 and 25 of P.D. No. 957 to determine whether he could be held liable for the
crime of perjury. He stated that nothing in P.D. No. 957 would suggest that violation of its provisions is
committed at the time of the execution of the contract to sell between the developer and the buyer.
According to him, there can be no violation at the time of the execution of the contract because it could not
yet be determined if the developer will not comply with the law. Violations occur from the time the
developer fails to comply with the law, and continue to be committed until the developer shall have fully
complied with the law.

Villapando argued in his petition that assuming arguendo that Maximo and Panganiban were not
employees/officers of ASB at the time of the execution of the contract to sell between ASB and Enhanced,
they may still be held liable being undisputedly directors of ASB at the time the complaint was filed against
them, during which, there was alleged continued non-compliance with Sections 17, 20 and 25 of P.D. No.
957. Nonetheless, Villapando insisted that he never alleged in his complaint that Maximo and Panganiban
were employees/officers of ASB at the time of the execution of the contract to sell. Instead, the two became
officers only in 2010 as evidenced by the Articles of Incorporation he attached to his complaint. He further
argued that the said issue is not material to the charge for violation of P.D. No. 957, and thus, no crime of
perjury was committed.

In the Comment110 of Maximo and Panganiban, they argued that Villapando misconstrued the concept of
continuing crimes. A continuing crime requires a series of acts which stems from a single criminal resolution.
The alleged violations of Sections 17, 20 and 25 of P.D. No. 957 consist of omissions such that the non-
compliance thereof cannot constitute a continuing crime. They stated that the issue as to whether the
violations of Sections 17, 20 and 25 of P.D. No. 957 are continuing offenses is a matter of defense which
cannot be raised in a motion to quash. They also stressed that the complaint of Villapando against the ASB
had already prescribed as ruled by the DOJ in its Resolution dated. December 12, 2014.111

In Reply112 to the Comment of Maximo and Panganiban, Villapando insisted that violation of Sections 17, 20
and 25 of P.D. No. 957 has not yet prescribed. He learned that there was violation of Section 17 of P.D. No.
957 only when he received the certification of the Makati City Register of Deeds dated May 12, 2010 stating
that the contract to sell has not been registered with its office. He also stated that the DOJ Resolution dated
December 12, 2014 was brought before this Court on February 18, 2015 via a petition
for certiorari docketed as G.R. No. 216546 entitled Francisco Z. Villapando, Jr. v. Hon Leila de Lima.113

In the Comment114 filed by the OSG, it contended that unless and until the City Prosecutor files a new
information for Perjury against Villapando, there would be no actual case to speak of and there would be no
need for the court to resolve the issue regarding the nature of the violation of the provisions of P.D. No.
957.
In the Reply115 to the Comment of the OSG, Villapando averred that it is proper for this Court that the legal
issue be resolved to avoid a circuitous and vexatious litigation.

Basically, the petition of Villapando imputes grave error on the part of the CA in not resolving the
substantive issue as to whether violations of Sections 17, 20 and 25 of P.D. No. 957 are continuing offenses.

The argument need not detain Us. This Court's power of review may be awesome, but it is limited to actual
cases and controversies dealing with parties having adversely legal claims, to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented.116

An actual case or controversy involves a conflict of legal right, an opposite legal claim susceptible of judicial
resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a
real and substantial controversy admitting of specific relief.117

We agree with the argument proffered by the OSG that unless and until the City Prosecutor files a new
information for perjury against Villapando, there would be no actual case to speak of and there would be no
need for the court to resolve the issue regarding the nature of the violation of the provisions of P.D. No.
957. The resolution on whether Sections 17, 20 and 25 of P.D. No. 957 are continuing offenses would
necessarily pre-empt the outcome of the trial before the proper court should an information be re-filed by
the City Prosecutor.

Quite notable is the statement of Villapando in his Reply that he filed a petition for certiorari before this
Court docketed as G.R. No. 216546 questioning the ruling of the DOJ Secretary in sustaining the denial of
his complaint for violations of Sections 17, 20 and 25 of P.D. No. 957. Apparently, the arguments he raised
in G.R. No. 216546 as to the nature of the violations of Sections 17, 20 and 25 of P.D. No. 957 are the same
arguments he is raising in the instant petition.

Based on the foregoing, We deny the petition filed by Villapando and imputes no grave error on the part of
the CA in not resolving the substantive issue as to whether violations of Sections 17, 20 and 25 of P.D. No.
957 are continuing offenses. We, therefore, uphold the ruling of the CA that since the Amended Information
was defective on its face for having been filed by an unauthorized person, there was no need to resolve
whether Sections 17, 20 and 25 of P.D. No. 957 are continuing offenses without pre-empting the trial court
should an Information be filed by the prosecution.

As a final note, We need to state that had the prosecutor and the MeTC presiding judge been aware of the
pertinent provisions of the Rules of Court on the matter, the defect in the Information could have been
cured before the arraignment of the accused by a simple motion of the public prosecution to amend the
Information; the amendment at this stage of the proceedings being a matter of right on the part of the
prosecution, or for the court to direct the amendment thereof to show the signature or approval of the City
Prosecutor in filing the Information. Section 4, Rule 117 of the Rules of Court mandates that if the motion to
quash is based on the alleged defect of the complaint or information which can be cured by amendment, the
court shall order that an amendment be made. Had either of these two been done, this case should have not
unnecessarily reached this Court.

WHEREFORE, the Decision dated June 13, 2014, and Resolution dated October 16, 2014 of the Court of
Appeals in CA-G.R. CV No. 131085 are hereby AFFIRMED.

SO ORDERED.
 EN BANC

G.R. No. L-22945 March 3, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,

vs. JOVITA V. BUENVIAJE, Defendant-Appellant.

Francisco and Lualhati and Ariston Rivera for appellant.

Attorney-General Villa-Real for appellee.

OSTRAND, J.:

The defendant is accused of the violation of the Medical Act, the

information alleging "that on or about the first day of June, 1923,
and for some time prior to said date, the said accused without
having obtained from the Board of Medical Examiners the
corresponding certificate of registration for the practice of medicine
in the Philippine Islands, voluntarily, illegally and criminally and for
compensation, practiced medicine in the City of Manila, Philippine
Islands, assisting, treating and manipulating the head and body of
Regino Noble for the purpose of curing him of the ailments,
diseases, pains and physical defects from which he pretended to
suffer, and advertising and offering her services as a physician, by
means of cards which she distributed and by letterheads and signs
which she exposed on the door of her office, situated at No. 712
Calle Asuncion, and in newspapers which are published and
circulated in the City of Manila, in which cards, letterheads, signs
and advertising she added and prefixed to her name the letters
`Dra.,' which is the abbreviation of the word `doctor,' for the
purpose of causing the public to believe that she, the said
defendant, had received the corresponding title of doctor." chanrobles v irt ual law li bra ry

To this information the defendant demurred in the court below on

the grounds: (1) That it stated more than one offense, and (2) that
it was not drawn in accordance with the form prescribed by law. The
demurrer was overruled and the defendant pleaded not guilty. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

At the trial of the case the defendant made the following

admissions: "That on the first of June, 1923, she had no certificate
from the Board of Medical Examiners authorizing her to practice
medicine in the Philippine Islands; that on that day she treated and
manipulated the head and body of Regino Noble in order to cure
him of ailments from which he pretended to suffer, the treatment
consisting in a `thrust' by means of the application of the hand to
the spinal column; that she for such treatment received and
collected from said Regino Noble the sum of P1; that the said
treatment took place in her office situated at No. 712 Calle
Asuncion, District of Binondo, City of Manila, Philippine Islands; that
she on or about the first day of June, 1923, and for some time prior
to that date, advertised herself as a `doctor of chiropractic,' in said
City of Manila, said advertisement appearing upon her business
cards and in the newspaper `El Debate,' in its issue of April 29,
1923, edited and published in Manila and in which cards and
newspaper advertisement the defendant prefixed the abbreviation
`Dra.' to her name; that she was graduated a doctor in chiropractic
on the 13th day of August, 1919, as evidenced by a certificate
marked Exhibit I and issued by the American University School of
Chiropractic of Chicago, Illinois." chanroble s virtual law lib rary

Upon this admission and some other evidence to the same effect,
the trial court found the defendant guilty as charged in the
information and, in accordance with section 2678 of the
Administrative Code, sentenced her to pay a fine of P300, with
subsidiary imprisonment in case of insolvency and to pay the costs.
From this judgment the defendant appeals to this court and
presents four assignments of error. chanroblesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

I. In the first assignment of error counsel contends that the

demurrer to the information should have been sustained on the
ground that said information charged more than one offense. The
Medical Law is contained in sections 758 to 783 of the
Administrative Code and it is argued that inasmuch as some of the
illegal acts with which the defendant is charged are prohibited by
section 770 of the Code and others by section 783, the defendant is
in reality accused of two separate and distinct offenses, namely,
illegal practice of medicine and illegally representing oneself as a
doctor.chanroblesvi rtualaw lib rary cha nrob les vi rtua l law lib rary
We cannot accept this view. It may be noted that the Medical Law
itself, as it appears in the Administrative Code, does not declare any
of the therein prohibited acts penal offenses. The penal provisions
relating thereto are contained in section 2678 of the Code, which
reads as follows:

SEC. 2678. Violation of Medical Law. - A person violating any

provision of the Medical Law shall, upon conviction, be punished by
a fine of not more than three hundred pesos or by imprisonment for
not more than ninety days, or both, in the discretion of the court.

The offense here penalized is "violation of the Medical Law." The

statute makes no distinction between illegal practice of medicine
and illegally advertising oneself as a doctor. Both are in violation of
the Medical Law and carry the same penalty. They are merely
different ways or means of committing the same offense and both of
these means are closely related to each other and usually employed
together.chanroble svirtualawl ibra ry chan roble s virtual law l ibrary

In these circumstances and where, as alleged in the information in

the present case, the various violations have taken place
simultaneously, we do not think it was the intention of the legislator
that each single act should be regarded as a separate offense and
separate informations presented for each. The language of this
court in the case of United States vs. Poh Chi (20 Phil., 140), in
regard to the Opium Law, is opposite to the present case.

It is true that the Commission has provided a certain punishment

for the possession of a pipe used in the smoking of opium, for the
smoking of opium, as well as a punishment for the illegal possession
of opium, but it is not believed that it was the intention of the
legislature to have separate complaints filed against a person who
was found in the illegal possession of opium and a pipe at the same
time. If that were true then every person who was found to be
smoking opium could be charged in three different complaints: First,
with the illegal possession of the pipe; second, the illegal possession
of the opium; and third, for smoking the opium. Certainly the
legislature did not intend any such consequences.
In the case of United States vs. Douglass (2 Phil., 461), the court
said:

It is not objectionable, when a single offense may be committed by

the use of different means, to charge, in the alternative, the various
means by which the crime may have been committed. (U.S. vs.
Potter, 27 Fed. Cases, 604; Bishop's New Criminal Procedure, sec.
434.)

The same rule was followed in the case of United States vs. Dorr (2
Phil., 332); United States vs. Tolentino (5 Phil., 682); and United
States vs. Gustilo (19 Phil., 208) and is in harmony with the views
of the courts in other jurisdictions. That the various means of
committing the offense is described in more than one section of the
statute does not necessarily effect the general principle involved;
the subdivision of a statute into section is merely a matter of
convenience and while it sometimes may be of some aid in
ascertaining the legislative intent, it is, of course, not conclusive
thereof.chanroble svirtualawl ibra ry chan roble s virtual law lib rary

II. Under the second assignment of error the appellant argues in

substance that chiropractic has nothing to do with medicine and
that the practice of that profession can therefore not be regarded as
practice of medicine. There is no merit whatever in this contention.
Assuming without conceding that chiropractic does not fall within
the term "practice of medicine" in its ordinary acceptation, we have
the statutory definition contained in section 770 of the
Administrative Code and which clearly includes the manipulations
employed in chiropractic. The statutory definition necessarily
prevails over the ordinary one. chanroblesvi rtua lawlib rary cha nrob les vi rtua l law lib ra ry

Under the same assignment of error the defendant also argues that
the examination prescribed by section 776 of the Administrative
Code for admission to the practice of medicine, embraces subjects
which have no connection with chiropractic and that to require
chiropractors to take that examination is unreasonable and, in effect
amounts to prohibition of the practice of their profession and
therefore violates the constitutional principle that all men have the
right to life, liberty and the pursuit of happiness and are entitled to
the equal protection of the law. chanroblesvi rt ualawlib ra ry chan robles v irt ual law libra ry
There is very little force in this argument. The subjects in which an
examination is required by section 778 of the Administrative Code,
as amended by Act No. 3111, relate to matters of which a thorough
knowledge seems necessary for the proper diagnosis of diseases of
the human body and it is within the police power of the State to
require that persons who devote themselves to the curing of human
ills should possess such knowledge. (State vs. Edmunds, 127 Iowa,
333; 69 L.R.A., 504; Underwood vs. Scott, 43 Kan., 714; People vs.
Blue Mountain Joe, 129 Ill., 370; State vs. Mylod, 20 R. I., 632; 41
L.R.A., 428; Stewart vs. Raab, 55 Minn., 20; Matthei vs. Wooley, 69
Ill. App., 654; State vs. Buswell, 40 Neb., 158; 24 L.R.A., 68;
O'Connor vs. State, 46 Neb., 157; U. S. vs. Gomez Jesus, 31 Phil.,
218.)chanrobles vi rtual law lib rary

III. The third assignment of error is closely related to the foregoing.

The appellant contends that the prohibition in section 783 against
the unauthorized use of the title "doctor" must be understood to
refer to "Doctor of Medicine" and has no application to doctors of
chiropractic. Under different circumstances that might possibly be
so, but where, as here, chiropractic is by statute made a form of the
practice of medicine, it necessarily follows that a person holding
himself out as a doctor of chiropractic in legal effect represents
himself as a doctor of medicine. chanroble svirtualawl ibra ry chan robles vi rtual law lib rary

IV. In her fourth assignment of error the appellant attacks the

constitutionality of Act No. 3111, amending section 770 of the
Administrative Code, on the ground that the subject of the Act is not
sufficiently expressed in its title and that it embraces more than one
subject. There is no merit in this contention. The title of Act No.
3111 reads as follows:

An Act to amend sections seven hundred and fifty-nine, seven

hundred and sixty, seven hundred and sixty-one, seven hundred
and sixty-two, seven hundred and sixty-five, seven hundred and
sixty-seven, seven hundred and seventy, seven hundred and
seventy-four, seven hundred and seventy-five, seven hundred and
seventy-six, seven hundred and seventy-eight, seven hundred and
eighty, seven hundred and eighty-two, seven hundred and eighty-
three, and twenty-six hundred and seventy-eight of Act Numbered
Twenty-seven hundred and eleven, known as the Administrative
Code, increasing the number of the members of the Board of
Medical Examiners, conferring upon the same certain additional
powers and responsibilities and for other purposes.

All of the sections enumerated in the title quoted relate to the same
general subject, namely, defining and regulating the practice of
medicine, and section 770 is expressly mentioned as one of the
sections amended. chanro blesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry

This is sufficient. Under constitutional provisions similar to ours the

general rule is that a title which declares the amendatory statute to
be an act to amend a designated section or the like of a specified
Code is sufficient and the precise nature of the amendatory Act
need not be further stated. (Ross vs. Aguirre, 191 U.S., 60;
Udell vs. Citizens Street R. Co., 152 Ind., 507; McGuire vs. Chicago,
etc., R. Co., 131 Iowa, 340; Lankford vs. County Commissioners of
Somerset County, 73 Md., 105; Tabor vs. State, 34 Tex. Crim.,
631; Com. vs. Brown, 91 Va., 762.) For a full and authoritative
discussion of this subject, see Note to Lewis vs. Dunne, 55 L.R.A.,
833. See also Government of the Philippine Islands vs. Municipality
of Binalonan and Roman Catholic Bishop of Nueva Segovia (32 Phil.,
634) and Yu Cong Eng vs. Trinidad (p. 385, ante). chanroblesvi rt ualawlib ra ry chanro b les virtual law l ibra ry

We find no error in the judgment appealed from and the same is

therefore affirmed, with the costs against the appellant. So ordered.

Malcolm, Villamor, and Johns, JJ., concur.

Separate Opinions

ROMUALDEZ, J., dissenting: chanroble s virtual law lib rary

I believe that the complaint charges more than one offense, and
that the demurrer interposed on that ground should have been
sustained. For that reason I dissent from the opinion of the
majority.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 13990 September 24, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE SOTTO, defendant-appellant.

The appellant on his own behalf.

Office of the Solicitor-General Paredes for appellee.

FISHER, J.:

This is an appeal from a judgment of the Court of First Instance of Manila by which the appellant,
Vicente Sotto, was found guilty of the crime of libel and sentenced to pay a fine of P600.

The information upon which this prosecution was based is as follows:

That during the period from the 1st day of May, 1915, to the 22nd of the said month and
year, in the city of Manila, Philippine Islands, within the jurisdiction of this Court, the said
defendant, Vicente Sotto, being the director, editor, manager, and printer of the weekly paper
known as "The Independent," edited and published in English and Spanish in the city of
Manila, with the intention of attacking the honesty, virtue and reputation of Lope K. Santos,
Jose Turiano Santiago and Hermenegildo Cruz, the principal leaders of the association
known as the "Congreso Obrero de Filipinas," and with the malicious intention of exposing
the said Lope K. Santos, Jose Turiano Santiago and Hermenegildo Cruz to public hatred,
contempt and ridicule as private citizens and as the leaders of the said association,
voluntarily, illegally, criminally and maliciously published and caused to be published of the
three persons above named a certain false, injurious and malicious defamation and libel
tending to attack the honesty, virtue and reputation of the same, on page 23 of issue No. 4 of
the said weekly paper, dated May 1, 1915, which said publication is as follows:

"WITHOUT MALICE . . . .

"Having become tired to seeing the workingmen at the mercy of parasites who, under the
guise of a false sympathy for the laboring classes, exploit the proletariat, making the latter
the plaything of their ambitions and machiavelian manipulations; weary of these self-styled
labor leaders who are pointed out by the people as the ones responsible for the malversation
of workingmen's funds, the bankruptcy of the "Tagumpay," the "Katubusan scandals," the
disappearance of a promissory note from the office of attorney Diokno, the misappropriations
of funds in the management of the "El Ideal." The combinations which resulted in the failure
of the seamen and street-car employees' strikes, and other numerous blunders committed by
the said labor leaders, all of which has left the proletariat in the situation of a victim plucked
by the very ones who set themselves up as their defenders; and, realizing that our cause is
in danger, now, for the sake of our honor, and for dignity of the laboring classes, we believe
that the time has come to speak plainly and to put an end for once and all to so many
parasites.
"If all these charges are true, it is hard to understand why the workingmen have continued
until now under the control of their present leaders.

"Who is to blame?

"VICTI."

which said libelous publication was amplified by a carbon published on page 1 of issue No. 7
of the said weekly paper "The Independent, on the 22nd of May, 1915, which was also
published at the place and on the date above-mentioned. Which said cartoon, in which
among others, there appear the caricatures of the aforesaid parties is made an integral part
of this information as Exhibit A; that the said defendant on the aforesaid date and place
intended to accuse, as in fact he did accuse, Lope K. Santos, of being responsible for certain
scandals which occurred in the cigar and cigarette factory "Katubusan" and for the
disappearance of a promissory note from the office of attorney Ramon Diokno and of being
indebted to the firm of E.C. McCullough & Co. and to the printer I. Morales, both of this city of
Manila; accusing also Jose Turiano Santiago, one of the organizers of the seamen and
street-car employees' strikes, of being responsible for certain combinations and insinuating
that he had received the sum of P2,000 to bring about the failure of the strikes; and accusing
also Hermenegildo Cruz of being responsible for the bankruptcy of the printing establishment
"Tagumpay," of certain scandals in the aforesaid factory "Katubusan," and of the
misappropriation of funds in the administration of the newspaper "El Ideal;" and accusing all
of the said three parties of the malversation of workingmen's funds; and that the said
malicious defamation was published and circulated at the said time and place by the
defendant in the manner above set forth with the intention of attacking the honesty, virtue
and reputation of the said Lope K. Santos, Jose Turiano Santiago and Hermenegildo Cruz,
thereby exposing them to public hatred, contempt and ridicule.

All contrary to the law in such cases made and provided.

The defendant demurred to this information upon the ground of duplicity. The trial court
sustained the demurrer, and from that ruling an appeal was taken to this court on behalf of
the government. Justice Moreland, writing the opinion of the court upon the questions
presented by that appeal (U.S. vs. Sotto, 36 Phil. Rep., 389), said:

It is contended that each publication set out in the information is libelous in itself and,
therefore, constitutes a crime; and, as a necessary result, that two crimes are charged in the
information. We do not believe this contention is sound. The only purpose of including in the
information the second publications was to complete the publication. The first publication
mentions no names. It speaks of labor leaders in general but of no one in particular. It
employs, however certain words and phrases such as "the bankruptcy of the Tagumpay,"
"the Katubusan scandals," the disappearance of a promissory note from the office of
Attorney Diokno, "the misappropriation of funds in the management of El Ideal," and the
combinations which resulted in the failure of the seamen and street-car employees' strikes.
The second publication consists of a cartoon in which the persons referred to in the first
publication are caricatured by name and to each one of them is attached one of the words or
phrases just mentioned, thereby identifying him as one of the persons meant in the first
publication. It the first publication, as we have seen, the labor leaders referred to are charged
with having caused "the bankruptcy of the Tagumpay." In the cartoon we have the picture of
a man labeled "H. Cruz" carrying a banner which bears among others, the word "Tagumpay."
The first publication also mentions "The Katubusan scandal." In the cartoon the word
"Katubusan" is found inscribed on a banner carried by "H. Cruz" and also upon one carried
 by a person labeled "L. K. Santos." In the first publication we have also the charge that the
labor leaders therein referred to were responsible for "the disappearance of a promissory
note from the office of Attorney Diokno." The word "Diokno" appears in the cartoon upon the
banner carried by L. K. Santos." On the banner carried by H. Cruz are the words "El Ideal" to
which reference is found in the first publication where the labor leaders are charged with
responsibility for the disappearance of funds belonging to "El Ideal." A person named "J.
Turiano" is seated at a table with a dish before him labeled "Labor Congress" which he is
engaged in eating. He also holds in his hand a banner carrying the devices "seamen strike
and street-car employees strike." The banner borne by L. K. Santos carried in addition to the
words "Katubusan" and Diokno the words "McCullough" and "Morales." From the mouths of
the three figures thus depicted in the cartoon, H. Cruz, J. Turiano and L. K. Santos, issue the
words respectively "I am the first leader," "And I am the second," and "And I am the third."

The evident purpose and result of the publication of the cartoon, called the second
publication, was to make clear to the public that the three men named in the cartoon were
the labor leaders referred to in the first publication and the persons to whom they were
directed. It served as the means of identification of the unnamed persons who were the
subject of the first publication; and also of placing upon each one the particular offense of
which the first publication charged him. It not only served to identify but it also served to point
out the person upon whom should fall the odium of the particular charge made.

In view of the close and necessary connection between the first publication and the cartoon, the
Court held that "this joinder of the separate parts of publications in one indictment is permissible
even though each separate publication constitutes libel in itself, provided that all the different
publications refer to the same subject-matter and are necessary or convenient for the completion of
the other . . ." and upon this statement of the principles of law involved reversed the ruling of the
lower court upon the demurrer. The case was then remanded, and the defendant, having entered a
plea of not guilty, was brought to trial.

The defense was based upon the contention (1) that the charges against the complainant Cruz,
Santos and Turiano are true, and (2) that they were published with good motives and for justifiable
ends. The trial judge, without making any findings with regard to the truth or falsity of the charges
against the complainants, held that they were not published with "good motives and for justifiable
ends," and that the defendant, in making the publication, was actuated by actual malice and
personal spite against the persons libeled.

The appellant contends that the trial judge erred in finding that he was the editor and manager of
"The Independent," a newspaper in which the offending matter was published. We are of the opinion
that the evidence is amply to sustain this finding and fully establishes the responsibility of appellant
for all matters published in this newspaper, of which he expressly admitted himself to be the owner.
He also contends that the trial court erred in holding that the publications complained of are libelous.
The defamatory nature of the publication is, however, so palpable that we cannot regard this
contention as having been seriously advanced.

With regard to the defense that the libelous imputation are true, we are of the opinion, after a careful
consideration of the evidence, that the defendant has failed completely to make good his contention
in this regard.

In the case of Jimenez vs. Reyes (27 Phil. Rep., 52), at page 59, Justice Trent, writing the opinion of
the court, laid down the rule that for the purpose of determining the meaning of any publication
alleged to be libelous "that construction must be adopted which will give to the matter such a
meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally
understand what was uttered. The published matter alleged to be libelous must be construed as a
whole. In applying these rules to the language of an alleged libel, the court will disregard any substle
or ingenious explanation offered by the publisher on being called to account. The whole question
being the effect the publication had upon the minds of the readers, and they not having been
assisted by the offered explanation in reading the article, it comes too late to have the effect of
removing the sting, if any there be, from the word used in the publication."

Applying this rule to the publications here under consideration, we are of the opinion that the readers
of defendant's newspaper would naturally understand that by them it was intended to impute to the
complainant Cruz, the malversation of funds belonging to the "El Ideal" newspaper company; to the
complainant Turiano the malversation of funds belonging to the labor unions with which he was
connected and to the complainant Santos the theft of a promissory note from the office of Diokno.
Other derogatory imputations may be inferred, more or less clearly, from the article and the cartoon,
considered together, but there can be no doubt that those we have mentioned are clearly brought to
the mind of the reader. To make good his defense that the defamatory charges are true, the burden
rested upon defendant of showing that the complainants were in fact guilty of the reprehensible
conduct imputed to them. (Newell on Slander and libel, par. 969.) Having arrogated unto himself the
authority to cast upon complainants the stigma of guilt, without giving them an opportunity to be
heard in their defense, he can escape the consequences of his officious assumption of power by
nothing short of positive proof that his accusation was warranted by the facts, and that in making it
public he was not actuated by personal spite against the complainants, or a mere delight in the
propagation of scandal, but by a good motive and a desire to accomplish a justifiable object. The
proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion.
It must rest upon positive, direct evidence, upon which a definite finding may be made by the court. It
must embrace all the charges. A plea of justification of a libel charging more than one offense is not
made out of proof of part of the charges.

We are of the opinion that the evidence adduced by the accused in this case falls far short of proof
of the truth of any of his charges against the complainants. He has shown that there were rumors in
circulation derogatory to them concerning these matters, and that some people believe them to be
guilty of misconduct, but that is the most that can be said. We, therefore, hold that his defense of
justification has failed.

Having failed to prove the truth of his charges, the motive which induced him to publish them is of
comparatively little important. Were we convinced that defendant acted in good faith, after careful
inquiry, and was the victim of an honest mistake, we might take that circumstance into consideration
in fixing the penalty. As it is we are fully in accord with the trial court in the opinion that defendant
was actuated by express malice. This is shown by the insistence with which he has reiterated his
charges against complainants and the methods employed by him in holding them up to contempt
and ridicule.

It is frequently suggested in cases of this kind, in which the medium of publication of the libelous
matter is a newspaper, that a conviction of the responsible party is objectionable as constituting an
infringement of the freedom of the press. Such a criticism involves a fundamental misapprehension
concerning the nature of that freedom. The freedom of the press consists in the right to print and
publish any statement whatever without subjection to the previous censorship of the government. It
does not mean immunity from willful abuses of that freedom, which, if permitted to go unrebuked,
would soon make the license of an unrestrained press even more odious to the people than would
be the interference of government with the expression of opinion. Certainly a moment's reflection will
convince any one approaching the subject with an open mind that no public service is rendered by
the publication in a newspaper of defamatory statements which are false and were published, not
from a sense of duty, but to gratify the personal spite and animosity of the writer against the persons
defamed. Such is this case. The trial judge, in his carefully written opinion, said:
 In order to form an opinion as to the degree of malice disclosed by the acts of the accused, it
is sufficient to glance over the thirty issues of his weekly paper, introduced in evidence by the
prosecution . . . . The disclose the determination of the accused to hold the complainants up
to ridicule, sometimes by veiled hints, at others by direct expression, exposing to the public
gaze even their physical defects . . . . It would have been difficult to determine the malice and
evil intention of the accused, which caused the publication of the article and caricature, had
he not, after their publication, so frequently made mention of the three complainants over so
long a period of time, referring to them in terms of contempt, depicting them, in several
issues of "The Independent," and especially in the issue of July 31, 1915, as despicable
fellows, scoundrels, and vagabonds.

Taking into consideration the systematic persecution by the accused of which the complaining
witnesses have been the victims, we are of the opinion that he Attorney-General is warranted in
recommending that a sentence of imprisonment be imposed in addition to the fine inflicted by the
trial court.

It would hardly repay the effort for us to review the decisions of this court in earlier cases or criminal
libel in which the punishment inflicted has been limited to a fine, and to show why the particular
penalty was imposed in each instance. No two cases are alike. It may well be that the defamatory
charges, though in fact untrue, were made under such circumstances as to convince the court that
the accused believed them to be true and that such a belief was not unreasonable. Or the proof may
disclose that, while the particular defamatory imputation charged is untrue, the general character of
the complainant is good, which may properly be considered in fixing the penalty or assessing the
damage.

But, even admitting the tendency of the court in the past has been toward leniency, the conclusion to
be drawn from the growing frequency with which the Libel Law is disregarded would appear to be
that it is time to treat offenders with somewhat greater severity. It would be greatly to be deplored if
the impression were to be created that libels may be published without fear of personal
inconvenience by anyone able and willing to pay a moderate fine for the privilege. Exemplarity is one
of the effects which may properly be expected in the infliction of a penalty. The purpose of a law
penalizing libel and providing a remedy by civil suit for defamation of character is to encourage
persons so injured to appeal to the courts for vindication rather than to attempt to remedy or revenge
their grievances by taking the law into their own hands.

We, therefore, find the accused to be guilty of the crime of libel as charged against him in the
information, and sentence him to imprisonment for a period of three months and to the payment of a
fine of P600, with costs. So ordered.

Arellano, C.J., Torres, Johnson and Street, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13484 May 20, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
DOMINADOR CAMERINO, MANUEL PAKINGAN, CRISANTO SARATAN, BIENVENIDO
OSTERIA, ET AL.,defendants-appellees.

Actg. Solicitor General Guillermo E. Torres and Solicitor Eriberto D. Ignacio for appellant.
Avelino A. Velasco for appellees.

MONTEMAYOR, J.:

Dominador Camerino and eighty-six others were accused before the Court of First Instance of
Cavite of the crime of sedition, said to have been committed on or about and during the period
comprised by and between the months of October, 1953, to November 15, 1953 and for sometime
prior thereto; under an information charging conspiracy among the said accused in having allegedly
perpetrated for political and social ends, insistent, repeated and continuous acts of hate, terrorism
and revenge against private persons, leaders, members and sympathizers of the Nacionalista Party
in the town of Bacoor, Cavite, and frustrating by force, threats and violence, and intimidation the free
expression of the popular will in the election held on November 10, 1953. The information described
in detail the manner in which the alleged seditious acts were performed, specifying the dates and the
places where they were committed and the persons who were victims thereof, under fourteen
different overt acts of sedition. Before arraignment, forty-eight of the
eighty-seven accused, headed by Dominador Camerino, filed a motion to quash the information on
the ground of double jeopardy, claiming in support thereof that they had been previously convicted
or been in jeopardy of being convicted and/or acquitted of the offense charged in other cases of the
same nature before the court.

The Assistant Provincial Fiscal filed written opposition to the motion, saying that although it was
alleged in the information that the accused had been charged with various crimes under different
and separate informations, that would not place them in double jeopardy, because those previous
charges were being specified in the information only as a bill of particulars for the purpose of
describing in detail the offense of sedition, but not to hold the defendants liable for punishment under
said separate and different specifications; in other words, the specifications describing separate
crimes were alleged in the information merely to complete the narration of facts which constitute the
crime of sedition.

Later, all the accused filed a supplemental motion to quash, raising as additional grounds that more
than one offense was charged, and that the criminal action or liability of said defendants had been
extinguished.

On March 14, 1956, the trial court issued an order sustaining the reasons of the motion to quash and
dismissing the information on the grounds:(1) that the information charged more than one offense,
(2) that it was vague, ambiguous and uncertain, (3) that it described crimes for which some of the
accused had either been convicted or acquitted, and (4) some violation of the election law described
in the specification had already prescribed. A motion for reconsideration filed by the Fiscal was
denied. The Government is appealing from that order of dismissal, as well as the order denying the
motion for reconsideration.

In determining the present appeal, we deem it necessary to discuss only the first ground of the
dismissal of the information by the trial court, namely, multiplicity of offenses, that is to say, that the
information allegedly charged more than one offense. We agree with the Provincial Fiscal and the
Solicitor General representing the Government that the accused herein were being charged only
with one offense, namely, that of sedition, defined in Article 139 of the Revised Penal Code, as
amended by Commonwealth Act No. 202, and penalized under Article 140 of the same code. the
fourteen different acts or specifications charging some or all of the accused with having committed
the offenses charged therein, were included in the information merely to describe and to narrate the
different and specific acts the sum total of which constitutes the crime of sedition. Different and
separate acts constituting different and separate offenses may serve as a basis for prosecuting the
accused to hold them criminally liable for said different offenses. Yet, those different acts of offenses
may serve merely as a basis for the prosecution of one single offense like that of sedition. For
instance, one may be accused of sedition, and at the same time be prosecuted under another
information for murder or homicide as the case may be, if the killing was done in pursuance of and to
carry out the acts constituting sedition. In case of the People vs. Cabrera, 43 Phil., 64, this Tribunal
said:

The nearest analogy to the two crimes of murder and sedition growing out of practically the
same facts, which can be found in the American authorities, relate to the crimes of assault
and riot or unlawful assembly. A majority of the American courts have held that the offense of
unlawful assembly and riot and the offense of assault and battery are distinct offense; and
that conviction or an acquittal for either does not bar a prosecution for other offense, even
though based on the same acts. (Freeland vs. People (1855), 16 Ill., 380; U.S. vs. Peaco
(1835), 27 Fed. Cas., 477; People vs. Vasquez (1905), 9 Puerto Rico, 488; contra, State vs.
Lindsay (18868), 61 N.C., 458.)

It is merely stating the obvious to say that sedition is not the same offense as murder.
Sedition is a crime against public order; murder is a crime against persons. Sedition is a
crime directed against the existence of the State, the authority of the government, and the
general public tranquility; murder is a crime directed against the lives of individuals. (U.S. vs.
Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of commotions or
disturbances in the state; murder at common law is where a person of sound mind and
discretion unlawfully kills any human being, in the peace of the sovereign, with malice
aforethought, express or implied.

The offenses charged in the two informations for sedition and murder are perfectly distinct in
point of law however nearly they may be connected in point of fact. Not alone are the
offenses eonomine different, but the allegations in the body of the informations are different.
The gist of the information for sedition is the public and tumultuous uprising of the
constabulary in order to attain by force and outside of legal methods the object of inflicting an
act of hate and revenge upon the persons of the police force of the city of Manila by firing at
them in several places in the city of Manila; the gist of the information in the murder case is
that the Constabulary, conspiring together, illegally and criminally killed eight persons and
gravely wounded three others. The crimes of the murder and serious physical injuries were
not necessarily included in the information for sedition; and the defendants could not have
been convicted of these crimes under the first information.

In the case of U.S. vs. Cernias, 10 Phil., 682, this Court held that while it is true that each of those
acts charged against the conspirators was itself a crime, the prosecutor in setting them out in the
information did no more than to furnish the defendants with a bill of particulars of the facts which it
intended to prove at the trial, not only as a basis upon which to be found an inference of guilt of the
crime of conspiracy but also as evidence of the extremely dangerous and wicked nature of that
conspiracy.

The charge is not defective for duplicity when one single crime is set forth in different modes
prescribed by law for its commission, or the felony is set forth under different counts
specifying the way of its perpetuation, or the acts resulted from a single criminal impulse.
 Neither is there duplicity when the other offense described is but an ingredient or an
essential element of the real offense charged nor when several acts are related in describing
the offense. (Padilla: Criminal Procedure Annotated, 1959 ed., p. 101).

In the case of People vs. Bacolod, 89 Phil., 621, the defendant therein was convicted on a plea of
guilty of physical injuries through reckless imprudence. Based on the same facts, he was also
accused of having caused public disturbance. The plea of double jeopardy interposed by the
accused was rejected on the ground that the two offenses were not the same, although they arose
from the same act.

Following the reasoning of the trial court that more than one offense was charged, the trial court
should have ordered that the information be amended, or if that was not possible, that a new
information be filed.

Under section 2 of this Rule, the Court may deny or sustain the motion to quash but may not
defer it till the trial of the case on the merits. In sustaining the motion, the court may order the
filing of a new information or may dismiss the case. In the new information, the defects of the
previous information may be cured. For instance, if the motion to quash is sustained on the
ground that more than one offense is charged in the information, the court may order that
another information be filed charging only one offense. But the court may or may not issue
such order in the exercise of its discretion. The order may be made if the defects found in the
first information may be cured in a new information. If the order is made, the accused, if he is
in custody, should not be discharged, unless otherwise, admitted to bail. But if no such order
is made, or, having been made, the prosecuting attorney fails to file another information
within the time specified by the court, the accused, if in custody must be discharged, unless
he is also in custody for another charge, or if is out on bail, the bail must be exonerated. In
such event, however, the fiscal is free to institute another criminal proceeding since such
ground of objection is not a bar to another prosecution for the same offense. (Moran,
Comments on the Rules of Court, 1957 ed., Vol. II, pp. 778-779).

In conclusion, we hold that the information filed in this case did not charged more than one offense
but only that of sedition; that in specifying the separate and different criminal acts attributed to the
defendants, it was not the purpose or intention of the Government to hold them criminally liable in
the present proceedings, but merely to complete the narration of facts, though specifying different
offenses which as a whole, supposedly constitute the crime of sedition. Consequently, we believe
that the information is valid.

We deem it unnecessary to discuss the other points raised in the appeal.

In view of the foregoing, the appealed orders are hereby set aside and the case is hereby remanded
to the trial court of further proceedings, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez
David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 72670 September 12, 1986

SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION
BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I.
CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B.
FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA,
SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUÑOZ PALMA. JAIME V. ONGPIN,
FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR.,
RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP,
ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE
JAYME, **, petitioners,
vs.
SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and
Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO
FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS,
BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS,
JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd
LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS
FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE
GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO
MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC
ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO
ACUPIDO and HERMILO GOSUICO, *** , respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.

Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.

Ramon M. Bernaldo for respondent H. Gosuico.

Romulo Quimbo for respondent B. Vera Cruz.

Norberto J. Quisumbing for respondent P. Olivas.

Felix Solomon for respondent Col. A. Custodio.

Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran.

RESOLUTION

TEEHANKEE, C.J.:

Last August 21st, our nation marked with solemnity and for the first time in freedom the third
anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno
"Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in
September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing
squad by a military tribunal for common offenses alleged to have been committed long before the
declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial
process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly
not courts but mere instruments and subject to the control of the President as created by him under
the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines,
and that he had already been publicly indicted and adjudged guilty by the President of the charges in
a nationwide press conference held on August 24, 1971 when he declared the evidence against
Ninoy "not only strong but overwhelming ." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the
proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and
practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of
the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the
communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts.

Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo
successful heart surgery. After three years of exile and despite the regime's refusal to give him a
passport, he sought to return home "to strive for a genuine national reconciliation founded on
justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that
had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was
smashed by a bullet fired point blank into the back of his head by a murderous assassin,
notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a
military viewpoint, it (was) technically impossible to get inside (such) a cordon." 2 The military investigators
reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed
only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house
on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-
enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot.
The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the
evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to
eliminate Aquino, this was not the way to do it."

The national tragedy shocked the conscience of the entire nation and outraged the free world. The
large masses of people who joined in the ten-day period of national mourning and came out in
millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his
martyrdom and their yearning for the truth, justice and freedom.

The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and vicious
assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and
national shame specially because of the early distortions and exaggerations in both foreign and local media 4 so that all right thinking and
honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators."
After two false starts, 5 he finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing November 3, 1983
(including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377
pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to
mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman,
who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority
report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the
Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following
day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement
that "I hope you can live with your conscience with what you have done."

The fact is that both majority and minority reports were one in rejecting the military version as
propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-
hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no
subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen.
Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen.
Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen.
Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured
story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn,
of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not
a communist plot The only difference between the two reports is that the majority report found all the
twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief
General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the
premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August
21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters
"the six persons who were on the service stairs while Senator Aquino was descending" and "General
Luther Custodio . . . because the criminal plot could not have been planned and implemented
without his intervention."

The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work
lies in what will transpire in accordance with the action that the Office of the President may thereafter
direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after
warning the forces who adhere to an alien and intolerable political ideology against unscrupulously
using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes
and for the first time confirmed our worst fears of what unchecked evil would be capable of doing."
They wrote:

The task of the Board was clear and unequivocal. This task was not only to
determine the facts and circumstances surrounding the death of the late former
Senator. Of greater significance is the awesome responsibility of the Board to uphold
righteousness over evil, justice over injustice, rationality over irrationality,
humaneness over inhumanity. The task was indeed a painful test, the inevitable
result of which will restore our country's honored place among the sovereign nations
of the free world where peace, law and order, freedom, and justice are a way of life.

More than any other event in contemporary Philippine history, the killing of the late
former Senator Aquino has brought into sharper focus, the ills pervading Philippine
society. It was the concretization of the horror that has been haunting this country for
decades, routinely manifested by the breakdown of peace and order, economic
instability, subversion, graft and corruption, and an increasing number of abusive
elements in what are otherwise noble institutions in our country-the military and law
enforcement agencies. We are, however, convinced that, by and large, the great
majority of the officers and men of these institutions have remained decent and
honorable, dedicated to their noble mission in the service of our country and people.

The tragedy opened our eyes and for the first time confirmed our worst fears of what
unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba
Eban observes. "Nobody who has great authority can be trusted not to go beyond its
proper limits." Social apathy, passivity and indifference and neglect have spawned in
secret a dark force that is bent on destroying the values held sacred by freedom-
loving people.

To assert our proper place in the civilized world, it is imperative that public officials
should regard public service as a reflection of human Ideals in which the highest
sense of moral values and integrity are strictly required.

A tragedy like that which happened on August 21, 1983, and the crisis that followed,
would have normally caused the resignation of the Chief of the Armed Forces in a
country where public office is viewed with highest esteem and respect and where the
moral responsibilities of public officials transcend all other considerations.

It is equally the fact that the then President through all his recorded public acts and statements from
the beginning disdained and rejected his own Board's above findings and insisted on the military
version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of
anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief
in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my
government were involved, I would have known somehow ... Even at a fairly low level, I would have
known. I know how they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984
(as his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to
contradict earlier reports, namely, the recent evidence seems to
indicate that some of the guards may have been responsible (for
shooting Ninoy).

MARCOS: Well, you are of course wrong. What you have been
reading are the newspapers and the newspaper reports have been
biased. The evidence still proves that Galman was the killer. The
evidence also shows that there were intelligence reports connecting
the communist party to the killing. 8

In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence
upon release of the Board's majority report implicating him, he wrote that "(W)e are even more
aware, general, that the circumstances under which the board has chosen to implicate you in its
findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply
disturbed that on the basis of so-called evidence, you have been so accused by some members of
the Board," and extended "My very best wishes to you and your family for a speedy resolution of
your case," 9 even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the
Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was
quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." 10

It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo
Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other
petitioners, composed of three former Justices of this Court, five incumbent and former university
presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens
of the community, filed the present action alleging that respondents Tanodbayan and
Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of
justice and gross violation of the constitutional rights of the petitioners and the sovereign people of
the Philippines to due process of law. They asserted that the Tanodbayan did not represent the
interest of the people when he failed to exert genuine and earnest efforts to present vital and
important testimonial and documentary evidence for the prosecution and that the Sandiganbayan
Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with
the gravest doubts the sincerity of government to find out the truth about the Aquino assassination."
Petitioners prayed for the immediate issuance of a temporary restraining order restraining the
respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases
which it had scheduled on November 20, 1985 and that judgment be rendered declaring a mistrial
and nullifying the proceedings before the Sandiganbayan and ordering a re-trial before an impartial
tribunal by an unbiased prosecutor. 10-a

At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining
order enjoining respondent court from rendering a decision in the two criminal cases before it, the
Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted petitioners a five-day
period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page
memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as
Annex 5 of his comment.

But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in
reverse, 12 resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan
from rendering its decision.13 The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent
Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the
question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an
eight-to-three vote, with Justice Gutierrez joining the dissenters. 14

On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did
not indicate the legal ground for such action and urging that the case be set for a full hearing on the
merits because if the charge of partiality and bias against the respondents and suppression of vital
evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded:
The People are entitled to due process which requires an impartial tribunal and an unbiased
prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain
material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire
proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from
promulgating their decision as scheduled anew on December 2, 1985.

On December 5, 1985, the Court required the respondents to comment on the motion for
reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled,
respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged,
declaring them innocent and totally absolving them of any civil liability. This marked another unusual
first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was
not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the
prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal,
the instant case had become moot and academic. On February 4, 1986, the same Court majority
denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad
Santos maintaining our dissent.

On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration
attached therewith. The thrust of the second motion for reconsideration was the startling and
theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6,
1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered
the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel
headed by Herrera to whitewash the criminal cases against the 26 respondents accused and
produce a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and
ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that
he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new
Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added
"relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein
respondent never succumbed to any alleged attempts to influence his actuations in the
premises, having instead successfully resisted perceived attempts to exert pressure to drop the case
after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder
cases below against herein private party respondents." He candidly admitted also in his
memorandum: "There is not much that need be said about the existence of pressure. That there
were pressures can hardly be denied; in fact, it has never been denied." 15-a He submitted that "even as he
vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases
below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such
development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the
premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated
his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to
the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course."

Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9,
1986 stated that the trial of the criminal cases by them was valid and regular and decided on the
basis of evidence presented and the law applicable, but manifested that "if it is true that the former
Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into
suppressing vital evidence which would probably alter the result of the trial, Answering Respondents
would not interpose any objection to the reopening of those cases, if only to allow justice to take its
course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment,
asserted that he passed no note to anyone; the note being bandied about is not in his handwriting;
he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of
the defense or even of the prosecution; and requested for an investigation by this Court to settle the
note passing issue once and for all.

Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the
second motion for reconsideration that he revealed that the Sandiganbayan Justices and
Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case.
He amplified his revelations, as follows:

1. AB INITIO, A. VERDICT OF ACQUITTAL!

Incidents during the preliminary investigation showed ominous signs that the fate of
the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman
on August 21, 1983 was doomed to an ignominous end. Malacanang wanted
dismissal-to the extent that a prepared resolution was sent to the Investigating Panel
(composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for
signature. This, of course, was resisted by the panel, and a resolution charging all
the respondents as principals was forwarded to the Tanodbayan on January 10,
1985.

2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former
President) summoned to Malacañang Justice Bernardo Fernandez (the
Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and
an the members of the Panel

Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs.
Imelda R. Marcos, who left earlier, came back and left again. The former President
had a copy of the panel's signed resolution (charging all accused as principals),
evidently furnished him in advance, and with prepared notes on the contents thereof.

The former President started by vehemently maintaining that Galman shot Aquino at
the tarmac. Albeit initially the undersigned argued against the theory, to remain silent
was the more discreet posture when the former President became emotional (he was
quite sick then).

During a good part of the conference, the former President talked about Aquino and
the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to
the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos,
though close to me, is getting ambitious and poor Johnny does not know what to do".
. . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is
becoming ambitious "the boys were frantic when they heard that they will be charged
in court, and wig be detained at city jail."
 From outright dismissal, the sentiment veered towards a more pragmatic approach.
The former President more or less conceded that for political and legal reasons all
the respondents should be charged in court, Politically, as it will become evident that
the government was serious in pursuing the case towards its logical conclusion, and
thereby ease public demonstrations; on the other hand, legally, it was perceived that
after (not IF) they are acquitted, double jeopardy would inure. The former President
ordered then that the resolution be revised by categorizing the participation of each
respondent.

In the matter of custody of the accused pendente lite the Coordinator was ordered to
get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly
Bugarin to put on record that they had no place in their respective institutions. The
existence of PD No. 1950 (giving custody to commanding officers of members of
AFP charged in court) was never mentioned.

It was decided that the presiding justice (First Division) would personally handle the
trial, and assurance was made by him that it would be finished in four to six months,
pointing out that, with the recent effectivity of the New Rules on Criminal Procedure,
the trial could be expedited.

Towards the end of the two-hour meeting and after the script had been tacitly
mapped out, the former President uttered: "Mag moro-moro na lang kayo."

The parting words of the former President were: "Thank you for your cooperation. I
know how to reciprocate."

While still in the palace grounds on the way out, the undersigned manifested his
desire to the Tanodbayan to resign from the panel, or even the office. This, as well
as other moves to this effect, had always been refused. Hoping that with sufficient
evidence sincerely and efficiently presented by the prosecution, all involves in the
trial would be conscience-pricked and realize the futility and injustice of proceeding in
accordance with the script, the undersigned opted to say on.

Herrera further added details on the "implementation of the script," such as the holding of a "make-
believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of
January 23, 1985, while there were no members of the media; the installation of TV monitors directly
beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct
and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S.
Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the
bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide
these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the
Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the
crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability,"
adding that "in the almost twenty years that the undersigned has been the prosecutor in the sala of
the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of
acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the
proceedings in the Sandiganbayan and its decision be declared null and void."

New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986 submitted that a declaration of
mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of
evidence and collusion. He submitted that this would require reception of evidence by a Court-
appointed or designated commissioner or body of commissioners (as was done in G.R. No.
71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco
Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder
case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a
valid basis for a double jeopardy claim.

Respondents-accused opposed the second motion for reconsideration and prayed for its denial.
Respondent Olivas contended that the proper step for the government was to file a direct action to
annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures.

As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the
issues had become moot and academic because of the rendition of the Sandiganbayan's judgment
of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver
and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for
any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon
the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity.

After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5,
1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado
Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and
Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the
charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to
submit their findings to this Court for proper disposition. The Commission conducted hearings on 19
days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents
announced in open hearing that they decided to forego the taking of the projected deposition of
former President Marcos, as his testimony would be merely corroborative of the testimonies of
respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted its
extensive 64-page Report 16 wherein it discussed fully the evidence received by it and made a recapitulation of its findings in
capsulized form, as follows:

1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special
Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special
Prosecutor Tamayo, was originally of the view that all of the twenty-six (26)
respondents named in the Agrava Board majority report should all be charged as
principals of the crime of double murder for the death of Senator Benigno Aquino and
Rolando Galman.

2. When Malacanang learned of the impending filing of the said charge before the
Sandiganbayan, the Special Investigating Panel having already prepared a draft
Resolution recommending such course of action, President Marcos summoned
Justice Fernandez, the tree members of the Special Investigating Panel, and justice
Pamaran to a conference in Malacanang in the early evening of January 10, 1985.

3. In said conference, President Marcos initially expressed his disagreement with the
recommendation of the Special Investigating Panel and disputed the findings of the
Agrava Board that it was not Galman who shot Benigno Aquino.

4. Later in the conference, however, President Marcos was convinced of the

advisability of filing the murder charge in court so that, after being acquitted as
planned, the accused may no longer be prosecuted in view of the doctrine of double
jeopardy.
 5. Presumably in order to be assured that not all of the accused would be denied bail
during the trial, considering that they would be charged with capital offenses,
President Marcos directed that the several accused be "categorized" so that some of
them would merely be charged as accomplices and accessories.

6. In addition to said directive, President Marcos ordered that the case be handled
personally by Justice Pamaran who should dispose of it in the earliest possible time.

7. The instructions given in the Malacanang conference were followed to the letter;
and compliance therewith manifested itself in several specific instances in the course
of the proceedings, such as, the changing of the resolution of the special
investigating panel, the filing of the case with the Sandiganbayan and its assignment
to Justice Pamaran, suppression of some vital evidence, harassment of witnesses,
recantation of witneses who gave adverse testimony before the Agrava Board,
coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in
the very decision rendered in the case.

8. That that expression of President Marcos' desire as to how he wanted the Aquino-
Galman case to be handled and disposed of constituted sufficient pressure on those
involved in said task to comply with the same in the subsequent course of the
proceedings.

9. That while Justice Pamaran and Justice Fernandez manifested no revulsion

against complying with the Malacañang directive, justice Herrera played his role with
manifestly ambivalent feelings.

10. Sufficient evidence has been ventilated to show a scripted and pre-determined
manner of handling and disposing of the Aquino-Galman murder case, as stage-
managed from Malacañang and performed by willing dramatis personnae as well as
by recalcitrant ones whipped into line by the omnipresent influence of an
authoritarian ruler.

The Commission submitted the following recommendation.

Considering the existence of adequate credible evidence showing that the

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

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and
required them to submit their objections thereto. It thereafter heard the parties and their objections at
the hearing of August 26, 1986 and the matter was submitted for the Court's resolution.

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by the facts of public
record and knowledge set forth above and hereinafter, that the then President (code named
Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined
manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in
the Aquino Galman case and the Justices who tried and decided the same acted under the
compulsion of some pressure which proved to be beyond their capacity to resist', and which not only
prevented the prosecution to fully ventilate its position and to offer all the evidences which it could
have otherwise presented, but also pre-determined the final outcome of the case" of total absolution
of the twenty-six respondents accused of all criminal and civil liability.

The Court finds that the Commission's Report (incorporated herein by reference) and findings and
conclusions are duly substantiated by the evidence and facts of public record. Composed of
distinguished members of proven integrity with a combined total of 141 years of experience in the
practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and
appellate courts), experts at sifting the chaff from the grain, 17 the Commission properly appraised the evidences
presented and denials made by public respondents, thus:

The desire of President Marcos to have the Aquino-Galman case disposed of in a

manner suitable to his purposes was quite understandable and was but to be
expected. The case had stirred unprecedented public outcry and wide international
attention. Not invariably, the finger of suspicion pointed to those then in power who
supposedly had the means and the most compelling motive to eliminate Senator
Aquino. A day or so after the assassination, President Marcos came up with a public
statement aired over television that Senator Aquino was killed not by his military
escorts, but by a communist hired gun. It was, therefore, not a source of wonder that
President Marcos would want the case disposed of in a manner consistent with his
announced theory thereof which, at the same time, would clear his name and his
administration of any suspected guilty participation in the assassination.

The calling of the conference was undoubtedly to accomplish this purpose. . . .

President Marcos made no bones to conceal his purpose for calling them. From the
start, he expressed irritation and displeasure at the recommendation of the
investigating panel to charge all of the twenty-six (26) respondents as principals of
the crime of double murder. He insisted that it was Galman who shot Senator
Aquino, and that the findings of the Agrava Board were not supported by evidence
that could stand in court. He discussed and argued with Justice Herrera on this point.
Midway in the course of the discussion, mention was made that the filing of the
charge in court would at least mollify public demands and possibly prevent further
street demonstrations. It was further pointed out that such a procedure would be a
better arrangement because, if the accused are charged in court and subsequently
acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby
avoid another prosecution if some other witnesses shall appear when President
Marcos is no longer in office.

xxx xxx xxx

After an agreement was reached as to filing the case, instead of dismissing it, but
with some of the accused to be charged merely as accomplices or accessories, and
the question of preventive custody of the accused having thereby received
satisfactory solution, President Marcos took up the matter of who would try the case
and how long it would take to be finished.
According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to
personally handle the case. This was denied by Justice Pamaran. No similar denial
was voiced by Justice Fernandez in the entire course of his two-day
testimony. Justice Pamaran explained that such order could not have been given
inasmuch as it was not yet certain then that the Sandiganbayan would try the case
and, besides, cases therein are assigned by raffle to a division and not to a particular
Justice thereof.

It was preposterous to expect Justice Pamaran to admit having received such

presidential directive. His denial, however, falls to pieces in the light of the fact that
the case was indeed handled by him after being assigned to the division headed by
him. A supposition of mere coincidence is at once dispelled by the circumstance that
he was the only one from the Sandiganbayan called to the Malacanang conference
wherein the said directive was given. . . .

The giving of such directive to Justice Pamaran may also be inferred from his
admission that he gave President Marcos the possible time frame when asked as to
how long it would take him to finish the case.

The testimony of Justice Herrera that, during the conference, and after an agreement
was reached on filing the case and subsequently acquitting the accused, President
Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out
of the room President Marcos expressed his thanks to the group and uttered "I know
how to reciprocate," did not receive any denial or contradiction either on the part of
justice Fernandez or justice Pamaran. (No other person present in the conference
was presented by the respondents. Despite an earlier manifestation by the
respondents of their intention to present Fiscal Bernabe and Prosecutor Tamayo,
such move was abandoned without any reason having been given therefor.)

The facts set forth above are all supported by the evidence on record. In the mind of
the Commission, the only conclusion that may be drawn therefrom is that pressure
from Malacanang had indeed been made to bear on both the court and the
prosecution in the handling and disposition of the Aquino-Galman case. The intensity
of this pressure is readily deductible from the personality of the one who exerted it,
his moral and official ascendancy over those to whom his instructions were directed,
the motivation behind such instructions, and the nature of the government prevailing
at that time which enabled, the then head of state to exercise authoritarian powers.
That the conference called to script or stage-manage the prosecution and trial of the
Aquino-Galman case was considered as something anomalous that should be kept
away from the public eye is shown by the effort to assure its secrecy.None but those
directly involved were caned to attend. The meeting was held in an inner room of the
Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were
with the President. The conferees were told to take the back door in going to the
room where the meeting was held, presumably to escape notice by the visitors in the
reception hall waiting to see the President. Actually, no public mention alas ever
made of this conference until Justice Herrera made his expose some fifteen (15)
months later when the former president was no longer around.

President Marcos undoubtedly realized the importance of the matter he wanted to

take up with the officials he asked to be summoned. He had to do it personally, and
not merely through trusted assistants. The lack of will or determination on the part of
Justice Fernandez and Justice Pamaran to resist the presidential summons despite
 their realization of its unwholesome implications on their handling of the celebrated
murder case may be easily inferred from their unquestioned obedience thereto. No
effort to resist was made, despite the existence of a most valid reason to beg off, on
the lame excuses that they went there out of "curiosity," or "out of respect to the
Office of the President," or that it would be 'unbecoming to refuse a summons from
the President.' Such frame of mind only reveals their susceptibility to presidential
pressure and lack of capacity to resist the same. The very acts of being summoned
to Malacanang and their ready acquiescence thereto under the circumstances then
obtaining, are in themselves pressure dramatized and exemplified Their abject
deference to President Marcos may likewise be inferred from the admitted fact
that, not having been given seatsduring the two-hour conference (Justice Fernandez
said it was not that long, but did not say how long) in which President Marcos did the
talking most of the time, they listened to him on their feet. Verily, it can be said
that any avowal of independent action or resistance to presidential pressure became
illusory from the very moment they stepped inside Malacanang Palace on January
10, 1985. 18

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

Suffice it to give hereinbelow brief excerpts:—

1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as
principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and
6 others as accessories and the civilian as accomplice, and recommending bail for the latter two
categories: "The categorization may not be completely justified by saying that, in the mind of Justice
Fernandez, there was no sufficient evidence to justify that all of the accused be charged as
principals. The majority of the Agrava Board found the existence of conspiracy and recommended
that all of the accused be charged accordingly. Without going into the merit of such finding, it may
hardly be disputed that, in case of doubt, and in accordance with the standard practice of the
prosecution to charge accused with the most serious possible offense or in the highest category so
as to prevent an incurable injustice in the event that the evidence presented in the trial will show his
guilt of the graver charge, the most logical and practical course of action should have been, as
originally recommended by the Herrera panel, to charge all the accused as principals. As it turned
out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance
with the Malacañang instruction." It is too much to attribute to coincidence that such unusual
categorization came only after the then President's instruction at Malacanang when Gen. Ver's
counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November,
1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference
on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to
charge all of the twenty-six (26) respondents as principals of the crime of double murder." 19 As the
Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit
'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said date which did not
go through due to the summons for them to go to Malacanang in the early evening of said date."20

2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's
case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in
behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the
accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and
some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled,
perjured or threatened either to refrain from testifying or to testify in a manner favorable to the
defense."

The Report specified the ordeals of the prosecution witnesses:21 Cesar Loterina, PAL employee, Roberta
Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution
witnesses before at the trial. Witnesses Viesca and Rañas who also testified before the Board "disappeared all of a sudden and could not be
located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful
flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed
to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had
to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in
accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an
official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear
showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on
invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to
protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August
24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal
eyewitness Rebecca Quijano, the Commission reported that

... Undoubtedly in view of the considerable significance of her proposed testimony

and its unfavorable effect on the cause of the defense, the efforts exerted to
suppress the same was as much as, if not more than those in the case of Wakamiya.
... She recounted that she was in constant fear of her life, having been hunted by
armed men; that their house in Tabaco, Albay was ransacked, her family harassed
by the foreclosure of the mortgage on their house by the local Rural Bank, and
ejected therefrom when she ignored the request of its manager to talk with her about
her proposed testimony; that a certain William Fariñas offered her plane tickets for a
trip abroad; that Mayor Rudy Fariñas of Laoag City kept on calling her sister in the
United States to warn her not to testify; that, later, Rudy and William Fariñas offered
her two million pesos supposedly coming from Bongbong Marcos, a house and lot in
Baguio, the dropping of her estafa case in Hongkong, and the punishment of the
persons responsible for the death of her father, if she would refrain from testifying.

It is a matter of record, however, that despite such cajolery and harassments, or

perhaps because of them, Ms. Quijano eventually testified before the
Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure
expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano
to testify, and for his refusal to honor the invitation to attend the birthday party of the
First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985.
The insiduous attempts to tamper with her testimony, however, did not end with her
taking the witness stand. In the course of her testimony several notes were passed to
Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which
suggested that she be asked more questions about Dean Narvasa who was
suspected of having coached her as to what to declare (Exhibit "D"); and on another
occasion, at a crucial point in her testimony, a power brownout occurred; which
lasted for about twenty minutes, throwing the courtroom into darkness, and making
most of those present to scamper for safety, and Ms. Quijano to pass over the railing
of the rostrum so as to be able to leave the courtroom. It was verified that the
brownout was limited to the building housing the Sandiganbayan, it not having
affected the nearby Manila City Hall and the Finance Building. Justice Herrera
declared that the main switchboard of the Sandiganbayan electrical system was
located beside the room occupied by Malacañang people who were keeping track of
the proceedings.
Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two
Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks
after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who
jotted down the number of the car that took them away, also disappeared. On January 29, 1984,
during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was
kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then,
despite his attempts to find any of them. According to him, "nobody was looking for these five
persons because they said Marcos was in Power [despite his appeal to the Minister of National
Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new
leadership for its assistance in learning their fate.

3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's
proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa
Airfield or some other place, such showing would not necessarily contravene the theory of the
prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport.
Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane
merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans
designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even
assuming that the said piece of evidence could go either way, it may not be successfully contended
that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence.
Despite minor inconsistencies contained therein, its introduction could have helped the cause of the
prosecution. If it were not so, or that it would even favor the defense, as averred by Justice
Fernandez, the determined effort to suppress the same would have been totally uncalled for."

4. Nine proposed rebuttal witnesses not presented.

5. The failure to exhaust available remedies against adverse developments: "When the Supreme
Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the
military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost
immediately announced to media that he was not filing a motion for the reconsideration of said
denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the
same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing
the trial of the case as soon as possible, if not of something else."

6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President
Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice
Pamaran of such instruction crumbles under the actuality of such directive having been complied
with to the letter. ...

"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle
the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to
a particular Justice, but to a division thereof. The evidence before the Comission on how the case
happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was
not done fairly or regularly.

"There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the
uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal
would be presented by the respondents to testify on the contents of his aforesaid
Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not
like to testify. Neither was any one of the officials or employees of the Sandiganbayan who,
according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the
claim of Justice
 xxx xxx xxx

"It is also an admitted fact that the two Informations in the double murder case were filed by Justice
Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were
summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in
the actual assignment of the case can truly be categorized as unusual, if not extraordinary,
considering that before a case filed may be included in the raffle, there is need for a certain amount
of paper work to be undertaken. If such preliminary requirements were done in this case within the
limited time available therefor, the charge that the raffle was rushed to avoid the presence of media
people would ring with truth.

What is more intriguing is the fact that although a raffle might have been actually conducted which
resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission
did not receive any evidence on how or why it was handled personally by Justice Pamaran who
wrote the decision thereof, and not by any one of the two other members of his division. . . .

7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When
the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an
order directing the confinement of the accused in the City Jail of Manila. This order was not carried
out in view of the information given by the Warden of the City Jail that there was no space for the
twenty-six accused in said jail. The same information was given when the custody was proposed to
be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At
that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of
the accused military personnel with their respective Commanding Officers. Justice Herrera claimed
that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who
had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was
given such copy only after sometime. ..."

8. The monitoring of proceedings and developments from Malacañang and by Malacañang

personnel: "There is an uncontradicted evidence that the progress of the proceedings in the
Sandiganbayan as well as the developments of the case outside the Court had been monitored by
Malacañang presumably for it to know what was happening and to take remedial measures as may
be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the
label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose.
There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and
Malacañang personnel stayed to keep track of the proceedings." the close monitoring by
Malacañang showed its results on several occasions specified in the Report. Malacañang was
immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on
August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise
Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacañang intelligence chief,
suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca
Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of
her. "It is likewise an undisputed fact," the Commission noted "that several military personnel
pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the
prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear
that President Marcos did not only give instructions as to how the case should be handled He saw to
it that he would know if his instructions will be complied with."

9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the
twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an
integral part of the scenario which was cleverly designed to accomplish two principal objectives,
seemingly conflicting in themselves, but favorable both to then administration and to the accused; to
wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged
in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same
offense in the event that President Marcos shall no longer be in power.

"In rendering its decision the Sandiganbayan overdid itself in favoring the presidential
directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence
presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to
simply acquit all of the twenty-six accused on the standard ground that their guilt had not been
proven beyond reasonable doubt, as was the most logical and appropriate way of justifying the
acquittal in the case, there not being a total absence of evidence that could show guilt on the part of
the accused. The decision had to pronounce them 'innocent of the crime charged on the two
informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to
see a person accused of a crime to be favored with such total absolution. ...

Doubt on the soundness of the decision entertained by one of the two justices who concurred with
the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified
that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that
he was of the view that some of the accused should be convicted he having found difficulty in
acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to
him and Justice Vera Cruz that Malacañang had instructions to acquit all of the twenty-six
accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm
this statement (which was mentioned in Justice Herrera's comment to the Second Motion for
Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera
remained unrebutted " (Emphasis supplied)

The record shows suffocatingly that from beginning to end, the then President used, or more
precisely, misused the overwhelming resources of the government and his authoritarian powers to
corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As
graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur22) since the
resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the
cases against all accused was unpalatable (it would summon the demonstrators back to the streets 23 ) and at any rate was not acceptable to
the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang
conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court
and of giving them through their acquittal the legal shield of double jeopardy. 24

Indeed, the secret Malacanang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution
panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the
trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious
final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a
phrase from Ninoy's April 14, 1975 letter withdrawing his petition for habeas corpus, 25"This is the evil of
one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial
authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice." 26 His obsession for "the boys' "
acquittal led to several first which would otherwise be inexplicable:—

1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself
appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious
assassination of Ninoy Aquino and "to ventilate the truth through free, independent and
dispassionate investigation by prestigious and free investigators."

2. He cordially received the chairman with her minority report one day ahead of the four majority
members and instantly referred it to respondents "for final resolution through the legal system" as if it
were the majority and controlling report; and rebuked the four majority members when they
presented to him the next day their report calling for the indictment of all 26 respondents headed by
Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report).

3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally
disregarded the Board's majority and minority findings of fact and publicly insisted that the military's
"fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers'
incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in
gunning down the alleged assassin Galman and searing his lips.

4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as

Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very
information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and

5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to
convict some of the accused) granted all 26 accused total absolution and pronounced them
"innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal
nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had
unanimously declared the soldiers' version of Galman being Aquino's killer a "perjured story, given
deliberately and in conspiracy with one another."

The fact of the secret Malacañang conference of January 10, 1985 at which the authoritarian
President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution
panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as
admitted by respondent Justice Fernandez to have been confirmed by him to the then President's
"Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was
illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in
the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission
noted: "The very acts of being summoned to Malacañang and their ready acquiescence thereto
under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ...
Verily, it can be said that any avowal of independent action or resistance to presidential pressure
became illusory from the very moment they stepped inside Malacanang Palace on January 10,
1985."

No court whose Presiding Justice has received "orders or suggestions" from the very President who
by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on
a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the
time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military
men 26-a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of
law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be
much too easily transformed into a means of predetermining the outcome of individual cases. 26-b "This criminal collusion as to the handling
and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice
Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now
the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has
been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an
accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed.
There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered
before a neutral and impartial court.

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

1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this
Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution
which represents the sovereign people in criminal cases is denied due process. As the Court
stressed in the 1985 case of People vs. Bocar, 27

Where the prosecution is deprived of a fair opportunity to prosecute and prove its
case its right to due process is thereby violated. 27-a

The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of
Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-
30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a "lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever it exhibits its head"
(Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack
of jurisdiction, the same does not constitute a proper basis for a claim of double
jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case
was dismissed or otherwise terminated without the express consent of the accused
(People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was
ousted of its jurisdiction when it violated the right of the prosecution to due process.

In effect the first jeopardy was never terminated, and the remand of the criminal case
for further hearing and/or trial before the lower courts amounts merely to a
continuation of the first jeopardy, and does not expose the accused to a second
jeopardy.

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

Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case
which cannot be appealed or re-opened, without being put in double jeopardy was forcefully
disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows:
"That is the general rule and presupposes a valid judgment. As earlier pointed out, however,
respondent Courts' Resolution of acquittal was a void judgment for having been issued without
jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment
at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all
proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts
performed under it and all claims flowing out of it are void.

|lang1033 xxx xxx xxx

"Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It
is not to be dispensed for the accused alone. The interests of the society, which they have wronged
must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A
verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the
society offended, it could also mean injustice. This is where the Courts play a vital role. They render
justice where justice is due.30

2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a
motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of
manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M.
Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel.
Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the
prosecution memorandum that respondent Sandiganbayan "should not decide the case on the
merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange
between him and the Presiding Justice to show the latter's "following the script of Malacanang.

PJ PAMARAN
 Well the court believes that we should proceed with the trial and then
deal later on with that. After all, the most important thing here is, shall
we say, the decision of the case.

J. HERRERA

I think more important than the decision of the case, Your Honor, is
the capacity of the justices to sit in judgment. That is more important
than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by
Herrera). 31

But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision,
for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as
follows:

... the motion for inhibition above referred to related exclusively for the contempt
proceeding. Too, it must be remembered that the prosecution neither joined that
petition, nor did it at any time manifest a desire to file a similar motion prior to the
submission of these cases for decision. To do it now is not alone out of season but is
also a confession of official insouciance (Page 22, Decision). 32

The action for prohibition was filed in the Court to seek the disqualification of respondents Justices
pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since
an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view
of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due
process to the People if the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is
substantiated. 34

In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting
of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been
taken cognizance of by the Court which had required the respondents', including the
Sandiganbayan's, comments. Although no restraining order was issued anew, respondent
Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused
pending the final action of this Court. This is the teaching of Valdez vs. Aquilizan35, Wherein the court in
setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least
to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent
judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest
grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner."

3. Re: Objections of respondents.-The other related objections of respondents' counsels must be

rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-
determined judgment of acquittal was unlawful and void ab initio.

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

(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the
proceedings or errors of judgment which do not affect the integrity or validity of the judgment or
verdict.
(c) The contention of one of defense counsel that the State and the sovereign people are not entitled
to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited
hereinabove.

(d) The submittal of respondents-accused that they had not exerted the pressure applied by the
authoritarian president on public respondents and that no evidence was suppressed against them
must be held to be untenable in the wake of the evil plot now exposed for their preordained
wholesale exoneration.

(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg.
Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on
vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation
be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for
over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked,
because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of
February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being
resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last
August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the
denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacañang conference on January 10, 1985 which came
to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the
petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the
Court (without any new appointees) unanimously voted to admit the second motion for reconsideration. 37

4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial
court with an unbiased prosecutor.-There has been the long dark night of authoritarian regime, since
the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now
admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-
man rule, with the padlocking of Congress and the abolition of the office of the Vice-President.

As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new
members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an
extremely powerful executive. During this state of judicial siege, lawyers both in and outside the
judiciary perceptively surrendered to the animus of technicality. In the end, morality was
overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation."

Now that the light is emerging, the Supreme Court faces the task of restoring public faith and
confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse.
Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This
has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and
unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the
leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this
Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a
new trial, there must be a rejection of the temptation of becoming instruments of injustice as
vigorously as we rejected becoming its victims. The end of one form of injustice should not become
simply the beginning of another. This simply means that the respondents accused must now face
trial for the crimes charged against them before an impartial court with an unbiased prosecutor with
all due process. What the past regime had denied the people and the aggrieved parties in the sham
trial must now be assured as much to the accused as to the aggrieved parties. The people will
assuredly have a way of knowing when justice has prevailed as well as when it has failed.

The notion nurtured under the past regime that those appointed to public office owe their primary
allegiance to the appointing authority and are accountable to him alone and not to the people or the
Constitution must be discarded. The function of the appointing authority with the mandate of the
people, under our system of government, is to fill the public posts. While the appointee may
acknowledge with gratitude the opportunity thus given of rendering public service, the appointing
authority becomes functus officio and the primary loyalty of the appointed must be rendered to the
Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase
the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must
ever realize that they have no constituency, serve no majority nor minority but serve only the public
interest as they see it in accordance with their oath of office, guided only, the Constitution and their
own conscience and honor.

5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable
services rendered by the Commission composed of retired Supreme Court Justice Conrado M.
Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa
as members. In the pure spirit of public service, they rendered selflessly and without remuneration
thorough competent and dedicated service in discharging their tasks of hearing and receiving the
evidence, evaluating the same and submitting their Report and findings to the Court within the
scheduled period and greatly easing the Court's burden.

ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of

November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for
reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the
proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos.
10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a
re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard
for the requirements of due process, so that the truth may be finally known and justice done to an

This resolution is immediately executory. SO ORDERED.

Yap, Cruz, Paras and Feliciano, JJ., concur.

Feria, **** Fernan and Narvasa , ***** JJ., took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious
assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman
vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial
prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that
it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the
outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before
respondent Court all the pertinent facts which could have helped that Court in arriving at a just
decision. It had, thus, failed in its task.
 A public prosecutor is 'the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all and whose interest, therefore, in a criminal prosecution is
not that it shag win a case but that justice shall be done. As such, he is in a peculiar
and every definite sense the servant of the law, the two-fold aim of which is that guilt
shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69
Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the
pertinent facts at his disposal with methodical and meticulous attention, clarifying
contradictions and filling up gaps and loopholes in his evidence to the end that the
court's mind may not be tortured by doubts, the innocent may not suffer, and the
guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

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

The proceedings below, having been vitiated by lack of due process, to the detriment of the State
and the People, were invalid and the judgment rendered null and void ab initio. There having been
no trial at all in contemplation of law, there is likewise no judgment on which a plea of double
jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must
have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any
fundamental requisite which would render void the judgment would make ineffective a plea of
jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding,
that pressure and collusion did take place, they were not a party to the same; and, for those who
were charged only either as accomplices or accessories, they contend that their alleged offense
involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted
could only have benefited the principals, consequently, to subject them to a re-trial is to put them
twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the
State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222).
However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial
Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a
part thereof. The agreement to file the murder charge in Court so that, after being acquitted as
planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the
"categorization" of the accused into principals, accomplices and accessories so that not all of them
would be denied bail during the trial, were fraudulently conceived for their benefit and for the
purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent
prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682).
"A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put
him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee,
30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal
consequence that there was no trial and judgment to speak of, and under the circumstances peculiar
only to these cases, I v•te for a re-trial in the interest of truth and the ends of public justice. As in all
criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial
before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court
were found by the Commission constituted by this Court, purposely to inquire and ascertain the
veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted
and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and
that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman
case and the Justices who tried and decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to resist and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences it could have otherwise
presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second
motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the
subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of
attendant irregularities. With the greatest significance being given by our people to the said cases,
which are evidently of historical importance, I am readily persuaded that it is to our national interest
that all relevant evidence that may be now available be provided an opportunity to be received and
made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a
declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010
and 10011 before the Sandiganbayan and the ordering of are trial.

GUTIERREZ, JR., J. concurring:

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with
preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting
on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting
opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the
petition, we were denying the petitioners every reasonable opportunity to prove their allegations of
non-independent and biased conduct of both the prosecution and the trial court. I stated that the
issues of miscarriage of justice and due process arising from that conduct should be allowed more
extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I,
therefore, dissented from the Court's resolution denying the petitioners' motions to continue
presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the
findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's
action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that
judicial acts are regularly performed and that public officers have discharged their duties in
accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome
the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?
Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw
anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim,
prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging
not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of
allowing the heated passions and emotions generated by the Aquino assassination to cool off or die
down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I,
therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question
our authority to look into the exercise of its jurisdiction. There was the further matter of television
cameras during trial, their effect on the witnesses and the judges, and other mischievous
potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and
suspicions than appeared in the records at that time. The Court's opinion penned by the Chief
Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan
not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous
harassment of a person who has already undergone the agony of prosecution and trial for one and
the same offense. It certainly was never intended to cover a situation where the prosecution
suppresses some of its own evidence, where the accused correctly and eagerly anticipate a
judgment of acquittal, and where the court appears to have made up its mind even before trial has
started.

Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount
to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and
of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal
we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the
retrial of this case. The fairly strong language used by the Court in its main opinion underscores the
gravity with which it views the travesties of justice in this "trial of the century." At the same time,
nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual
finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any
statements about the circumstances of the assassination or about the military version of the killings
are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside
and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na
loob for an appointment or reappointment, or any other extraneous matters should color or influence
the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the
innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It
is not enough for the future proceedings to be fair they should be above any suspicion of partiality,
bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this
case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or
innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as
another mistrial, ad infinitum.
For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second
motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive
paragraph) of his Separate Concurring Opinion.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious
assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman
vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial
prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that
it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the
outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before
respondent Court all the pertinent facts which could have helped that Court in arriving at a just
decision. It had, thus, failed in its task.

A public prosecutor is 'the representative not of an ordinary party to a controversy,

but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all and whose interest, therefore, in a criminal prosecution is
not that it shag win a case but that justice shall be done. As such, he is in a peculiar
and every definite sense the servant of the law, the two-fold aim of which is that guilt
shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69
Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the
pertinent facts at his disposal with methodical and meticulous attention, clarifying
contradictions and filling up gaps and loopholes in his evidence to the end that the
court's mind may not be tortured by doubts, the innocent may not suffer, and the
guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

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

The proceedings below, having been vitiated by lack of due process, to the detriment of the State
and the People, were invalid and the judgment rendered null and void ab initio. There having been
no trial at all in contemplation of law, there is likewise no judgment on which a plea of double
jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must
have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any
fundamental requisite which would render void the judgment would make ineffective a plea of
jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding,
that pressure and collusion did take place, they were not a party to the same; and, for those who
were charged only either as accomplices or accessories, they contend that their alleged offense
involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted
could only have benefited the principals, consequently, to subject them to a re-trial is to put them
twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the
State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222).
However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial
Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a
part thereof. The agreement to file the murder charge in Court so that, after being acquitted as
planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the
"categorization" of the accused into principals, accomplices and accessories so that not all of them
would be denied bail during the trial, were fraudulently conceived for their benefit and for the
purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent
prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682).
"A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put
him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee,
30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal
consequence that there was no trial and judgment to speak of, and under the circumstances peculiar
only to these cases, I vote for a re-trial in the interest of truth and the ends of public justice. As in all
criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial
before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court
were found by the Commission constituted by this Court, purposely to inquire and ascertain the
veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted
and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and
that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman
case and the Justices who tried and decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to resist and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences it could have otherwise
presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second
motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the
subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of
attendant irregularities. With the greatest significance being given by our people to the said cases,
which are evidently of historical importance, I am readily persuaded that it is to our national interest
that all relevant evidence that may be now available be provided an opportunity to be received and
made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a
declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010
and 10011 before the Sandiganbayan and the ordering of are trial.
GUTIERREZ, JR., J. concurring::

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with
preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting
on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting
opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the
petition, we were denying the petitioners every reasonable opportunity to prove their allegations of
non-independent and biased conduct of both the prosecution and the trial court. I stated that the
issues of miscarriage of justice and due process arising from that conduct should be allowed more
extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I,
therefore, dissented from the Court's resolution denying the petitioners' motions to continue
presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the
findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's
action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that
judicial acts are regularly performed and that public officers have discharged their duties in
accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome
the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?

Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw
anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim,
prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging
not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of
allowing the heated passions and emotions generated by the Aquino assassination to cool off or die
down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I,
therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question
our authority to look into the exercise of its jurisdiction. There was the further matter of television
cameras during trial, their effect on the witnesses and the judges, and other mischievous
potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and
suspicions than appeared in the records at that time. The Court's opinion penned by the Chief
Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan
not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous
harassment of a person who has already undergone the agony of prosecution and trial for one and
the same offense. It certainly was never intended to cover a situation where the prosecution
suppresses some of its own evidence, where the accused correctly and eagerly anticipate a
judgment of acquittal, and where the court appears to have made up its mind even before trial has
started.
Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount
to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and
of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal
we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the
retrial of this case. The fairly strong language used by the Court in its main opinion underscores the
gravity with which it views the travesties of justice in this "trial of the century." At the same time,
nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual
finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any
statements about the circumstances of the assassination or about the military version of the killings
are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside
and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na
loob for an appointment or reappointment, or any other extraneous matters should color or influence
the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the
innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It
is not enough for the future proceedings to be fair they should be above any suspicion of partiality,
bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this
case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or
innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as
another mistrial, ad infinitum.

For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second
motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive
paragraph) of his Separate Concurring Opinion.

Footnotes

EN BANC

[G.R. No. 127444. September 13, 2000]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C.

VELASCO in his capacity as the Presiding Judge, RTC-Br. 88,
Quezon City, and HONORATO GALVEZ, respondents.

DECISION
BELLOSILLO, J.:
 This case nudges the Court to revisit the doctrine on double jeopardy, a
revered constitutional safeguard against exposing the accused to the risk of
answering twice for the same offense. In this case, after trial on the merits, the
accused was acquitted for insufficiency of the evidence against him in the cases
for murder and frustrated murder (although his co-accused was convicted), and
finding in the illegal carrying of firearm that the act charged did not constitute a
violation of law. But the State through this petition for certiorari would want his
acquittal reversed.
We narrate a brief factual backdrop.
The idyllic morning calm in San Ildefonso, Bulacan, a small town north of
Manila, was shattered by gunshots fired in rapid succession. The shooting
claimed the life of young Alex Vinculado and seriously maimed his twin brother
Levi who permanently lost his left vision. Their uncle, Miguel Vinculado, Jr. was
also shot. A slug tunneled through his right arm, pierced the right side of his
body and burrowed in his stomach where it remained until extracted by surgical
procedure.
As a consequence, three (3) criminal Informations - one (1) for homicide
and two (2) for frustrated homicide - were originally filed before the Regional
Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San
Ildefonso, and Godofredo Diego, a municipal employee and alleged bodyguard
of the mayor. On 14 December 1993, however, the charges were withdrawn
and a new set filed against the same accused upgrading the crimes to murder
(Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases Nos. 4005-M-
93 and 4006-M-93). Mayor Galvez was charged, in addition, with violation of
PD 1866 (Crim. Case No. 4007-M-94) for unauthorized carrying of firearm
outside his residence; hence, a fourth Information had to be filed.
After a series of legal maneuvers by the parties, venue of the cases was
transferred to the Regional Trial Court of Quezon City, Metro Manila. There the
cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-55485,
Q-94-55486 and Q-94-55487, respectively), and raffled to Branch 103 presided
over by Judge Jaime Salazar, Jr. In the course of the proceedings, the judge
inhibited himself and the cases were re-raffled to respondent Judge Tirso D.C.
Velasco of Branch 89.
On 8 October 1996 a consolidated decision on the four (4) cases was
promulgated. The trial court found the accused Godofredo Diego guilty beyond
reasonable doubt of the crimes of murder and double frustrated
murder. However, it acquitted Mayor Honorato Galvez of the same charges due
to insufficiency of evidence. It also absolved him from the charge of illegal
carrying of firearm upon its finding that the act was not a violation of law.
 The acquittal of accused Honorato Galvez is now vigorously challenged by
the Government before this Court in a Petition for Certiorari under Rule 65 of
the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the submission
of petitioner that the exculpation of the accused Galvez from all criminal
responsibility by respondent Judge Tirso Velasco constitutes grave abuse of
discretion amounting to lack of jurisdiction. Allegedly, in holding in favor of
Galvez, the judge deliberately and wrongfully disregarded certain facts and
evidence on record which, if judiciously considered, would have led to a finding
of guilt of the accused beyond reasonable doubt. Petitioner proposes that this
patently gross judicial indiscretion and arbitrariness should be rectified by a re-
examination of the evidence by the Court upon a determination that a review of
the case will not transgress the constitutional guarantee against double
jeopardy. It is urged that this is necessary because the judgment of acquittal
should be nullified and substituted with a verdict of guilt.
The main hypothesis of the Government is that elevating the issue of
criminal culpability of private respondent Galvez before this Tribunal despite
acquittal by the trial court should not be considered violative of the constitutional
right of the accused against double jeopardy, for it is now settled constitutional
doctrine in the United States that the Double Jeopardy Clause permits a review
of acquittals decreed by US trial magistrates where, as in this case, no retrial is
required should judgment be overturned.[1] Since Philippine concepts on double
jeopardy have been sourced from American constitutional principles, statutes
and jurisprudence, particularly the case of Kepner v. United States,[2] and
because similarly in this jurisdiction a retrial does not follow in the event an
acquittal on appeal is reversed, double jeopardy should also be allowed to take
the same directional course. Petitioner in this regard urges the Court to take a
second look at Kepner, it being the "cornerstone of the battlement of the Double
Jeopardy Clause" in the Philippines[3] and seriously examine whether the
precedents it established almost a century ago are still germane and useful
today in view of certain modifications wrought on the doctrine by the succeeding
American cases of United States v. Wilson[4] and United States v. Scott.[5]
Two (2) threshold issues therefore, interlocked as they are, beg to be
addressed. One is the propriety of certiorari as an extraordinary mode of review
under Rule 65 of the Rules of Court where the result actually intended is the
reversal of the acquittal of private respondent Galvez. The other is the
permissibility of a review by the Court of a judgment of acquittal in light of the
constitutional interdict against double jeopardy.
The recent untimely demise of respondent Galvez at the hands of alleged
assassins (not discounting too the earlier dismissal of respondent judge from
the service) may arguably have rendered these matters moot and academic,
thus calling for a dismissal of the petition on this basis alone. The Court
however is not insensitive to nor oblivious of the paramount nature and object
of the pleas forcefully presented by the Government considering especially the
alleged new directions in American jurisprudence taken by the doctrine of
double jeopardy. We are thus impelled to respond to the issues advanced by
petitioner for these bear unquestionably far-reaching contextual significance
and implications in Philippine juristic philosophy and experience, demanding no
less, explicit and definitive rulings.
For it may be argued from a historico-analytical perspective that perhaps
none of the constitutionally ensconced rights of men has followed a more
circuitous and tortuous route in the vast sea of jurisprudence than the right of a
person not to be tried or prosecuted a second time for the same offense.[6] This
prohibition does not consist merely of one rule but several, each rule applying
to a different situation, each rule marooned in a sea of exceptions.[7] It must have
been this unique transpiration that prompted even the redoubtable Mr. Justice
Rehnquist of the U.S. Supreme Court to remark in Albernaz v. United
States[8] that "the decisional law (in the area of double jeopardy) is a veritable
Sargasso Sea which could not fail to challenge the most intrepid judicial
navigator." It is therefore necessary that, in forming a correct perspective and
full understanding of the doctrine on double jeopardy and the rules so far
established relative to the effect thereon of appeals of judgments of acquittal, a
compendious review of its historical growth and development be
undertaken. This approach is particularly helpful in properly situating and
analyzing landmark interpretive applications of the doctrine in light of the
varying legal and factual milieu under which it evolved.
Jeopardy, itself "a fine poetic word,"[9] derives from the Latin "jocus" meaning
joke, jest or game,[10] and also from the French term "jeu perdre" which denotes
a game that one might lose. Similarly, the Middle English word "iuparti" or
"jupartie" means an uncertain game.[11] The genesis of the concept itself
however rests deep in the ancient Grecian view of tragedy and suffering and in
the old Roman legal concepts of punishment. Greek law bound prosecutor and
judge to the original verdict as can be seen in the remark of Demosthenes in
355 B. C. that "the laws forbid the same man to be tried twice on the same
issue."[12] The Justinian Digest[13] providing that "(a) governor should not permit
the same person to be again accused of crime of which he has been
acquitted,"[14] suggests certain philosophical underpinnings believed to have
been influenced byworks of the great Greek tragedians of the 5th century B.C.
reflecting mans "tragic vision" or the tragic view of life. For the ancient Greeks
believed that man was continuously pitted against a superior force that dictated
his own destiny. But this prevailing view was not to be taken in the sense of
man passing from one misfortune to another without relief, as this idea was
repugnant to Greek sensibilities. Rather, it expressed a universal concept of
catharsis or vindication that meant misfortune resolving itself into a final
triumph, and persecution, into freedom and liberation. To suffer twice for the
same misfortune was anathema to ancient thought.
The 18th century B. C. Babylonian king and lawgiver Hammurabi
recognized that humans could err in prosecuting and rendering judgment, thus
limits were needed on prosecutors and judges. A gruesome but effective way
of preventing a second trial by the same prosecutor after an acquittal can be
found in the first law of the Hammurabic Code: "If a man has accused a man
and has charged him with manslaughter and then has not proved [it against
him], his accuser shall be put to death."[15]
The repugnance to double trials strongly expressed by the Catholic Church
is consistent with the interpretation by St. Jerome in 391 A. D. of the promise
by God to his people through the prophet Nahum that "(a)ffliction shall not rise
up the second time"[16] and "(t)hough I have afflicted thee, I will afflict thee no
more."[17] Taken to mean that God does not punish twice for the same act, the
maxim insinuated itself into canon law as early as 847 A. D., succintly phrased
as "(n)ot even God judges twice for the same act."[18]
The most famous cause clbre on double jeopardy in the Middle Ages was
the dispute between the English King Henry II and his good friend, Thomas
Becket, Archbishop of Canterbury. Henry wished to continue the observance of
certain customs initiated by his predecessors called "avitae consuetudines,"
one of the known purposes of which was that clerics convicted of crimes before
Church courts be delivered to lay tribunals for punishment. He asserted in the
Constitutions of Clarendon that the clergy were also subject to the kings
punishment. This was met with stinging criticism and stiff opposition by the
Archbishop who believed that allowing this practice would expose the clergy to
double jeopardy. The issue between the two erstwhile friends was never
resolved and remained open-ended, for Thomas was later on mercilessly
murdered in his cathedral, allegedly at the instance of his king.[19]
It was in England though, a century ago, that double jeopardy was formally
institutionalized "as a maxim of common law"[20] based on the universal
principles of reason, justice and conscience, about which the Roman Cicero
commented: "Nor is it one thing at Rome and another at Athens, one now and
another in the future, but among all nations, it is the same."[21] But even as early
as the 15th century, the English courts already began to use the term "jeopardy"
in connection with the doctrine against multiple trials.[22] Thereafter, the principle
appeared in the writings of Hale (17th c.), Lord Coke (17th c.) and Blackstone
(18th c.).[23] Lord Coke for instance described the protection afforded by the rule
as a function of three (3) related common law pleas: autrefois acquit, autrefois
convict and pardon.[24] In Vauxs Case,[25] it was accepted as established that "the
life of a man shall not be twice put in jeopardy for one and the same offense,
and that is the reason and cause that autrefois acquitted or convicted
of the same offense is a good plea x x x x" Blackstone likewise observed that
the plea of autrefois acquit or a formal acquittal is grounded on the universal
maxim of the common law of England that "(n)o man is to be brought into
jeopardy of his life more than once for the same offense. And hence, it is
allowed as a consequence that when a man is once fairly found not guilty upon
any indictment, or other prosecution before any court having competent
jurisdiction of the offense, he may plead such acquittal in bar of any subsequent
accusation for the same crime.[26]
The English dogma on double jeopardy, recognized as an indispensable
requirement of a civilized criminal procedure, became an integral part of the
legal system of the English colonies in America. The Massachusetts Body of
Liberties of 1641, an early compilation of principles drawn from the statutes and
common law of England, grandly proclaimed that "(n)o man shall be twise
sentenced by Civill Justice for one and the same crime, offence or
Trespasse" and that "(e)verie Action betweene partie and partie, and
proceedings against delinquents in Criminall causes shall be briefly and
destinctly entered on the Rolles of every Court by the Recorder
thereof."[27] Ineluctably, this pronouncement became the springboard for the
proposal of the First Congress of the United States that double jeopardy be included
in the Bill of Rights. It acknowledged that the tradition against placing an individual twice in danger of a
second prosecution for the same offense followed ancient precedents in English law and legislation derived
from colonial experiences and necessities. Providing abundant grist for impassioned debate in the US
Congress, the proposal was subsequently ratified as part of the Fifth Amendment to the Constitution.

In 1817 the Supreme Court of Tennessee dismissed an appeal by the State

after an acquittal from perjury, declaring that: A writ of error, or appeal in the
nature of a writ of error, will not lie for the State in such a case. It is a rule of
common law that no one shall be brought twice into jeopardy for one and the
same offense. Were it not for this salutary rule, one obnoxious to the
government might be harassed and run down by repeated attempts to carry on
a prosecution against him. Because of this rule, a new trial cannot be granted
in a criminal case where the defendant is acquitted. A writ of error will lie for the
defendant, but not against him.[28] Verily, these concepts were founded upon that
great fundamental rule of common law, "Nemo debet bis vexari pro una et
eadem causa," in substance expressed in the Constitution of the United States
as: "Nor shall any person be subject for the same offense, to be twice put into
jeopardy of life or limb." It is in the spirit of this benign rule of the common law,
embodied in the Federal Constitution - a spirit of liberty and justice,
tempered with mercy - that, in several states of the Union, in criminal cases, a
writ of error has been denied to the State.[29]
The relationship between the prohibition against second jeopardy and the
power to order a new trial following conviction or dismissal stirred a no small
amount of controversy in United States v. Gibert.[30] There, Mr. Justice Story, on
circuit, declared that "the court had no power to grant a new trial when the first
trial had been duly had on a valid indictment before a court of competent
jurisdiction." The opinion formulated was that the prohibition against double
jeopardy applied equally whether the defendant had been acquitted or
convicted.
But it must be noted that even in those times, the power to grant a new trial
in the most serious cases was already being exercised by many American
courts, the practice having been observed from an early date, in spite of
provisions of law against double jeopardy.[31] For this reason, the rule
in Gibert was stoutly resisted.[32] As if to taunt Gibert, the 1839 case of United
States v. Keen[33] declared that the constitutional provision did not prohibit a new
trial on defendants motion after a conviction. In Hopt v. Utah,[34] the defendant
was retried three (3) times following reversals of his convictions.
Then in 1896 the U.S. Supreme Court in United States v. Ball[35] affirmed
that the double jeopardy rule did not prevent a second trial when, on appeal, a
conviction had been set aside. It declared that a defendant who procured on
appeal a reversal of a judgment against him could be tried anew upon the same
indictment or upon another indictment for the same offense of which he had
been convicted. This principle of autrefois convict was expanded nine (9) years
later in Trono v. United States[36] where the Court affirmed the judgment of the
Supreme Court of the Philippines by holding that "since the plaintiffs in error
had appealed their convictions of the lower offense in order to secure a reversal,
there was no bar to convicting them of the higher offense in proceedings in the
appellate court that were tantamount to a new trial." Mr. Justice Peckham,
holding for the Court, concluded that "the better doctrine is that which does not
limit the court or the jury upon a new trial, to a consideration of the question of
guilt of the lower offense of which the accused was convicted on the first trial,
but that the reversal of the judgment of conviction opens up the whole
controversy and acts upon the original judgment as if it had never been." [37] It
was ratiocinated that the result was justified not only on the theory that the
accused had waived their right not to be retried but also on the ground that "the
constitutional provision was really never intended to x x x cover the case of a
judgment x x x which has been annulled at the request of the accused x x x x"
 It must be stressed though that Ball also principally ruled that it had long
been settled under the Fifth Amendment that a verdict of acquittal is final,
ending a defendants jeopardy, and, even when not followed by any judgment,
is a bar to a subsequent prosecution for the same offense. It is one of the
elemental principles of our criminal law that the Government cannot secure a
new trial by means of an appeal, even though an acquittal may appear to be
erroneous.
In 1891 the United States Judiciary Act was passed providing that appeals
or writs of error may be taken from the district court or from the existing circuit
courts direct to the Supreme Court in any case that involved the construction of
the Constitution. The following year an issue was raised in United States v.
Sanges[38] on whether this Act conferred upon the government the right to sue
out a writ of error in any criminal case. In that case, existing rules on double
jeopardy took a significant turn when the United States Supreme Court
observed that while English law was vague on the matter, it had been settled
by overwhelming American authority that the State had no right to sue out a writ
of error upon a judgment in favor of the defendant in a criminal case, except
under and in accordance with express statutes, whether that judgment was
rendered upon a verdict of acquittal, or upon the determination by the court of
a question of law. The Court noted that in a few states, decisions denying a writ
of error to the State after a judgment for the defendant on a verdict of acquittal
proceeded upon the ground that to grant it would be to put him twice in jeopardy,
in violation of the constitutional provision.[39] Sanges therefore fixed the rule that
absent explicit legislative authority, the United States Government had no right
of appeal in criminal cases in case of an acquittal as it would expose the
defendant twice to jeopardy.
Notably, however, in 1892 the Attorneys General of the United States began
to recommend the passage of legislation allowing the Government to appeal in
criminal cases.Their primary objective was to resist the power of a single district
judge (under the law then obtaining) by dismissing an indictment to defeat any
criminal prosecution instituted by the Government. No action was taken on the
proposal until 1906 when President Theodore Roosevelt in his annual message
to the US Congress demanded the enactment of legislation on the
matter. Consequently, on 2 March 1907 such legislative authority was provided
when the Criminal Appeals Act became a law[40] Ch. 2564, 34 Stat. 1246.40permitting
40

the United States to seek a writ of error from the Supreme Court from any
decision dismissing all indictment on the basis of the "invalidity or construction
of the statute upon which the indictments is founded."[41] The law narrowed the
right to appeal by the Government to cases in which the ground of the District
Courts decision was invalidity or construction of the statute upon which the
charge was founded, and that a verdict in favor of the defendant based on
evidence could not be set aside on appeal no matter how erroneous the legal
theory upon which it may be based. For these purposes, it made no difference
whether the verdict be the result of the jurys decision or that of the judge. In
other words, Government could appeal from a decision dismissing an
indictment or arresting judgment on the basis of the statutory invalidity or
misconstruction of the pertinent criminal statute and from a decision sustaining
a special plea in bar, so long as the defendant would not be put in jeopardy.[42]
On 10 December 1898 the Philippine Islands was ceded by Spain to the
United States by virtue of the Treaty of Paris of 1898 which was ratified by the
State Parties on 11 April 1899. The Islands was placed under military rule until
the establishment of the Philippine Commission in 1902. On 23 April 1900 the
military government issued General Order No. 58 which amended the Code of
Criminal Procedure then in force by, among others, extending to the Islands the
double jeopardy provision under the Fifth Amendment of the US
Constitution. This was pursuant to the 7 April 1900 Instructions of President
McKinley issued to the Philippine Commission headed by William Howard
Taft. The Instructions read in part: x x x the Commission should bear in mind,
and the people of the Islands should be made to understand, that there are
certain great principles of government which have been made the basis of our
governmental system, which we deem essential to the rule of law x x x and
maintained in their islands for the sake of their liberty and happiness, however
much they may conflict with the customs or laws of procedure with which they
are familiar x x x x Upon every division and branch of the Government of the
Philippines therefore must be imposed these inviolable rules: x x x that x x x no
person shall be put twice in jeopardy for the same offense x x x x"[43]
General Order No. 58 was amended by Act No. 194 which permitted an
appeal by the government after acquittal. The Philippine Civil Government Act
of 1 July 1902 of the U.S. Congress repealed the Act, adopted and restored the
same principle in Gen. Order No. 58 as enunciated in the Fifth Amendment and
in McKinleys Instructions by providing immunity from second jeopardy for the
same criminal offense. It did not take long however for the meaning and
significance of the doctrine held forth in McKinleys Instructions to be placed
under severe test and scrutiny.
In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines,
was charged with embezzlement of funds (estafa). He was tried by a court of
first instance, minus a jury, and was acquitted of the crime. The U.S.
Government appealed to the Supreme Court of the Philippine Islands and
judgment was reversed. Kepner was sentenced with imprisonment and
suspended from public office or place of trust.
 Questioning his conviction before the US Supreme Court, Kepner argued
that the appeal by the US government to the Philippine Supreme Court of his
judgment of acquittal constituted double jeopardy construed in light of existing
US jurisprudence. On the other hand, the Attorney General for the Philippines
and the Solicitor General of the United States jointly contended that the
Philippine Bill of 1 July 1902 which included the prohibition against double
jeopardy should be construed from the perspective of the system of laws
prevailing in the Philippines prior to its cession to the United States. Under this
system, the Audiencia (Supreme Court) could entertain an appeal of a
judgment of acquittal since the proceedings before it were regarded not as a
new trial but an extension of preliminary proceedings in the court of first
instance. The entire proceedings constituted one continuous trial and the
jeopardy that attached in the court of first instance did not terminate until final
judgment had been rendered by the Audiencia. Double jeopardy was described
not only in the Spanish law Fuero Real[44] as: After a man accused of any crime
has been acquitted by the court, no one can afterwards accuse him of the same
offense (except in certain specified cases), but also in the Siete
Partidas[45] which provided that: If a man is acquitted by a valid judgment of any
offense of which he has been accused, no other person can afterwards accuse
him of the offense x x x x Under this system of law, a person was not regarded
as jeopardized in the legal sense until there had been a final judgment in the
court of last resort. The lower courts then were deemed examining courts,
exercising preliminary jurisdiction only, and the accused was not finally
convicted or acquitted until the case had been passed upon in the Audiencia or
Supreme Court, whose judgment was subject to review by the Supreme Court
in Madrid (Spain) for errors of law, with power to grant a new trial.
The U.S. Supreme Court however threw out the Governments argument
and held that the proceedings after acquittal had placed the accused Kepner
twice in jeopardy. It declared in no uncertain terms that the appeal of the
judgment of conviction was in essence a trial de novo and that, whatever the
Spanish tradition was, the purpose of Congress was to carry some at least of
the essential principles of American constitutional jurisprudence to the Islands
and to engraft them upon the law of these people newly subject to its
jurisdiction. There was little question therefore that Kepner soldered into
American jurisprudence the precedent that as to the defendant who had been
acquitted by the verdict duly returned and received, the court could take no
other action than to order his discharge. x x x (I)t is then the settled law of this
court that former jeopardy includes one who has been acquitted by a verdict
duly rendered, although no judgment be entered on the verdict, and it was found
upon a defective indictment. The protection is not x x x against the peril of
second punishment, but against being tried again for the same offense."[46]
 This doctrine was echoed in United States v. Wills[47] where the Court further
clarified that jeopardy implies an exposure to a lawful conviction for an offense
of which a person has already been acquitted x x x x It was reiterated in 1957
in Green v. United States[48] in which Mr. Justice Black, writing for the Court,
professed that the constitutional prohibition against double jeopardy was
designed to protect an individual from being subjected to the hazards of trial
and possible conviction more than once for an alleged offense. Thus, under the
Fifth Amendment, a verdict of acquittal was considered final, ending the
accuseds jeopardy and that once a person has been acquitted of an offense,
he cannot be prosecuted again on the same charge.
American jurisprudence on the effect of appealed acquittals on double
jeopardy since then sailed on, following the main sea lanes charted
by Kepner, but not without encountering perturbance along the way. For it may
be mentioned, albeit en passant, that the case of Bartkus v. Illinois[49] did cause
some amount of judicial soul-shaking in 1959 when it burst into the
scene. Alfonse Bartkus was tried before a federal district court in Illinois and
was later acquitted by the jury. Less than a year later, Bartkus was indicted this
time by an Illinois grand jury on facts substantially identical to those of the
federal charge and was subsequently convicted. His conviction was affirmed by
the Illinois Supreme Court.
On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed
the conviction. The Court, speaking through Mr. Justice Frankfurter, declared
that the Fifth Amendments double jeopardy provision was inapplicable to states
so that an acquittal of a federal indictment was no bar to a prosecution by a
state based on the same charge.Since there was no proof offered to show that
the participation of the federal authorities in the Illinois state prosecution was of
such nature as to render the state proceedings a mere cover for a federal
prosecution to render the state indictment essentially a constitutionally
prohibited second prosecution, no double jeopardy attached.
Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr.
Justice Douglas, with Mr. Justice Brennan writing a separate dissenting
opinion. Black rued that the Courts ruling by a majority of one only resulted in
"further limiting the already weakened constitutional guarantees against double
prosecution," citing the earlier case of United States v. Lanza,[50] where the
Court allowed the federal conviction and punishment of a man previously
convicted and punished for identical acts by a state court. The dissent called
attention to the fact that in Bartkus, for the first time in its history, the Court
allowed the state conviction of a defendant already acquitted of the same
offense in the federal court. This, Mr. Justice Black asserted, was unacceptable,
for as the Court previously found in Palko v. Connecticut,[51] "double
prosecutions for the same offense are so contrary to the spirit of our free country
that they violate even the prevailing view of the Fourteenth Amendment since
some of the privileges and immunities of the Bill of Rights . . . have been taken
over and brought within the Fourteenth Amendment by process of absorption x
x x x One may infer, from the fewness of the cases, that retrials after acquittal
have been considered particularly obnoxious, worse even, in the eyes of many,
than retrials after conviction."
Whether such forceful pronouncements steered back into course
meandering views on double jeopardy is open to question. Nonetheless, the
case of Fong Foo v. United States,[52] decided per curiam, reaffirmed the
pronouncements in Ball and Kepner that "the verdict of acquittal was final, and
could not be reviewed x x x without putting (the petitioners) twice in jeopardy,
and thereby violating the Constitution."
In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent
significant alterations. The 1942 amendment of its Section 682 permitted for the
first time appeals to the circuit appeals court from orders sustaining demurrer
to indictment in cases not directly appealable to the Supreme Court.[53] However,
due to the many modifications the law was subjected to, construction and
interpretation became more laborious, effectively transforming appeals into
highly technical procedures. As such, the Criminal Appeals Act developed into
a judicial bete noire, for even the U.S. Supreme Court itself had "to struggle in
a number of occasions with the vagaries of the said
Act." In one of those unhappy efforts, it concluded that the Act was "a failure x
[54]

x x a most unruly child that has not improved with age."[55]

The U.S. Congress finally got rid of the dismal statute in 1970 and
replaced it with a new Criminal Appeals Act intended to broaden the right of
Government to appeal whenever the Constitution would permit. It was apparent
that the legislative body left to the courts the prerogative to draw the
constitutional limits of double jeopardy rather than define them itself. Since
then, pronouncements by the courts on the jouble jeopardy guarantee of the
Fifth Amendment focused on three (3) related protections: against a second
prosecution for the same offense after acquittal; against a second prosecution
for the same offense after conviction; and, against multiple punishments for the
same offense.[56]
In Wilson,[57] the Court expressed that the interests underlying these three
(3) protections are quite similar. Thus, when a defendant has been once
convicted and punished for a particular crime, principles of fairness and finality
require that he be not subjected to the possibility of further punishment by being
tried or sentenced for the same offense.[58] And when a defendant has been
acquitted of an offense, the Clause guarantees that the State shall not be
permitted to make repeated attempts to convict him, "thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty."[59] It can thus be inferred from these
cases that the policy of avoiding multiple trials has been considered paramount
so that exceptions to the rule have been permitted only in few instances and
under rigid conditions.
Accordingly, in United States v. Scott[60] the US Supreme Court synthesized
two (2) venerable principles of double jeopardy jurisprudence: first, the
successful appeal of a judgment of conviction on any ground other than the
insufficiency of the evidence to support the verdict poses no bar to further
prosecution on the same charge; and second, a judgment of acquittal, whether
based on a jury verdict of not guilty or on a ruling by the court that the evidence
is insufficient to convict, may not be appealed and terminates the prosecution
when a second trial would be necessitated by a reversal.[61] It would seem that
the conditionality of when a second trial would be necessitated by a reversal
was attached thereto because ordinarily, the procedure obtaining was that if on
appeal a judgment of acquittal is reversed, i. e., a finding is had against the
defendant, a remand of the case for another trial may be allowed if needed.
At this juncture, it must be explained that under existing American law and
jurisprudence, appeals may be had not only from criminal convictions but also,
in some limited instances, from dismissals of criminal charges, sometimes
loosely termed "acquittals." But this is so as long as the judgments of dismissals
do not involve determination of evidence, such as when the judge: (a) issues a
post-verdict acquittal, i.e., acquits the defendant on a matter of law after a
verdict of guilty has been entered by a trier of facts (a jury); (b) orders the
dismissal on grounds other than insufficiency of evidence, as when the statute
upon which the indictment was based is defective; (c) conducts a judicial
process that is defective or flawed in some fundamental respect, such
as incorrect receipt or rejection of evidence, incorrect instructions, or
prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act of
a trial judge refusing to enter judgment on the verdict because of an error
appearing on the face of the record that rendered the judgment;[62] or, (e)
pronounces judgment on a special plea in bar (a non obstante plea) - one that
does not relate to the guilt or innocence of the defendant, but which is set up
as a special defense relating to an outside matter but which may have been
connected with the case.[63] Interestingly, the common feature of these instances
of dismissal is that they all bear on questions of law or matters unrelated to a
factual resolution of the case which consequently, on appeal, will not involve a
review of evidence. Its logical effect in American law is to render appeals
therefrom non-repugnant to the Double Jeopardy Clause.
This contextual situation in which appeals from dismissals of criminal cases
are allowed under American rules of procedure does not obtain in the
Philippines. To be sure, United States v. Scott positively spelled out that if an
acquittal was based on an appreciation of the evidence adduced, no appeal
would lie. Mr. Justice Rehnquist explained that what may seem superficially to
be a "disparity in the rules governing a defendants liability to be tried again"
refers to the underlying purposes of the Double Jeopardy Clause. He
elaborated that "(a)s Kepner and Fong Foo illustrate, the law attaches
particular significance to an acquittal. To permit a second trial after an acquittal
however mistaken x x x would present an unacceptably high risk that the
Government, with its vastly superior resources, might wear down the defendant
so that even though innocent he may be found guilty. x x x x On the other hand,
to require a criminal defendant to stand trial again after he has successfully
invoked the statutory right of appeal to upset his first conviction is not an act of
governmental oppression of the sort against which the x x x Clause was
intended to protect."
In proposing a re-evaluation of Philippine jurisprudence on double jeopardy,
petitioner insists that Wilson and Scott have unquestionably altered the
seascape of double jeopardy previously navigated by Kepner and Ball. Using
as its flagship the pronouncement in Wilson that appeals of acquittal are
possible provided the accused will not be subjected to a second trial, it argues
that this should apply to the case at bar because, anyway, a review of the
acquittal of private respondent Honorato Galvez will not result in another
trial inasmuch as the Court will only have to examine the evidence adduced
below to pass final judgment on the culpability of the accused.
Petitioners own hermeneutic sense of the phrase "another trial" is that which
solely adverts to a proceeding before a competent trial court that rehears the
case and receives evidence anew to establish the facts after the case has been
finally disposed of by the Supreme Court. Obviously, it adheres to the
Holmesian hypothesis in Kepnerand, for that matter, the concept under Spanish
law then applicable in the Philippines before the American colonization, that a
trial consists of one whole continuing process from reception of evidence by a
trier of facts up to its final disposition by the Supreme Court. But petitioner
conveniently forgets that this theory has been consistently spurned by both
American and Philippine jurisprudence that has faithfully adhered to the
doctrine that an appeal of a judgment after the defendant had been acquitted
by the court in a bench trial is, quintessentially, a new trial. In Kepner, the Court
regarded the two (2) events, i. e., trial by the lower court and the appellate
proceedings, as equivalent to two (2) separate trials, and the evil that the Court
saw in the procedure was plainly that of
multiple prosecutions.[64] Although Kepner technically involved only one
proceeding, the Court deemed the second factfinding, that is, the review by the
appellate court, as the equivalent of a second trial. Accordingly, in subsequent
cases, the Court has treated the Kepner principle as being addressed to the
evil of successive trials.[65]
No less than the case of Wilson,[66] petitioners main anchor for its
propositions, affirms this rule. There, the Court emphasized that it has, up to
the present, rejected the theory espoused by the dissenting Mr. Justice Holmes
in Kepner that " a man cannot be said to be more than once in jeopardy in the
same cause however often he may be tried. The jeopardy is one
continuing jeopardy, from its beginning to the end of the cause." It declared
unequivocally that "we continue to be of the view that the policies underlying
the Double Jeopardy Clause militate against permitting the Government to
appeal after a verdict of acquittal." Wilson therefore pronounced that if acquittal
is declared on the basis of evidence adduced, double jeopardy attaches for that
particular cause.
To explain further, Wilson involved an appeal by Government of a post-
verdict ruling of law issued by the trial judge resulting in the acquittal of the
defendant due to pre-indictment delay (a delay between the offense and the
indictment prejudiced the defendant) after a verdict of guilty had been entered
by the jury. But it was not an acquittal that involved factual resolution. It was
one anchored on an extraneous cause. Factual resolution is defined in United
States v. Sorenson[67] following the rulings in Ball, Fong Fooand Sisson as the
finding that government failed to prove all the elements of the offense. It is clear
therefore that the acquittal of Wilson, not being based on evidence, could be
appealed. The rule therefore fixed in Wilson is that where a judge holds for the
defendant on a ruling of law, and not on the basis of evidence, after a jury
entered a verdict of guilty, the prosecution may appeal the acquittal without
violating double jeopardy, as this is allowed under the pertinent law.[68] This is
so since no second trial will ensue, as a reversal on appeal would merely
reinstate the jurys verdict.[69] And if the prosecution is upheld, the case simply
goes back to the trial court for disposition of the remaining matters. It bears
emphasis that in Wilson, no double jeopardy problem was presented because
the appellate court, upon reviewing the asserted legal errors of the trial judge,
could simply order the jurys guilty verdict reinstated, no new factfinding would
be necessary, and the defendant would not be put twice in jeopardy.[70]
The case of Scott, also considerably relied upon by petitioner, involved an
accused who, having been indicted for several offenses, himself moved for the
dismissal of two (2) counts of the charges on the ground that his defense was
prejudiced by pre-indictment delay. The trial judge granted the
motion. Government appealed the dismissals but the appellate court rejected
the appeal on the basis of double jeopardy. This time the US Supreme Court
reversed, holding that "(w)here a defendant himself seeks to avoid his trial prior
to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not
offended by a second prosecution. Such a motion by the defendant is deemed
to be a deliberate election on his part to forego his valued right to have his guilt
or innocence determined by the first trier of facts."
The inapplicability of this ruling to the case at bar is at once discernible. The
dismissal of the charges against private respondent Galvez was not upon his
own instance; neither did he seek to avoid trial, as it was in Scott, to be
considered as having waived his right to be adjudged guilty or innocent. Here,
trial on the merits was held during which both government and accused had
their respective day in court.
We are therefore insufficiently persuaded to adopt petitioners concept of
"another trial" because, as discussed above, it disregards the contextual
interpretation of the term in light of the legal and factual morphology of the
double jeopardy principle obtaining in Wilson and Scott. To sum up, in the
cause before us, the records show that respondent trial judge based his finding
of acquittal, no matter how erroneous it might seem to petitioner, upon the
evidence presented by both parties. The judgment here was no less than a
factual resolution of the case. Thus, to the extent that the post-verdict acquittal
in Wilson was based on a ruling of law and not on a resolution of facts, Wilson is
not, to reiterate, pertinent to nor persuasive in the case at bar. The same
observation holds true for Scott. That it was the defendant who secured the
dismissal of the charges against him without any submission to either judge or
jury as to his guilt or innocence, but on a ground totally outside evidentiary
considerations, i.e., pre-indictment delay, definitely forecloses the applicability,
if not relevance, of Scott to the instant case.
Wilson, Scott and all other pertinent American case law considered, it still
behooves us to examine if at this time there is need to rethink our juristic
philosophy on double jeopardy vis--vis acquittals. In this respect, it would be
instructive to see how Philippine law and jurisprudence have behaved
since Kepner. Has the principle since then beneficially evolved, or has it
remained an "unruly child that has not improved with age?"
The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel
Moran observed in People v. Tarok,[71] are not indigenous but are a matter of
constitutional or statutory history. Enunciated in the Constitution of the United
States, from there it found its way into this country, first, in the Philippine Bill of
1902, then in the Jones Law of 1916, and finally, in the 1935 Philippine
Constitution. Being thus a mere recognition of the maxim of the common law,
and adopted from the Constitution of the United States, the principle of double
jeopardy followed in this jurisdiction the same line of development - no narrower
nor wider - as in the Anglo-Saxon jurisprudence.
While some reservations may be had about the contemporary validity of this
observation considering the variety of offsprings begotten, at least in the United
States, by the mother rule since then, perhaps it is safer to say that not much
deviation has occurred from the general rule laid out
in Kepner. For Kepner may be said to have been the lighthouse for the
floundering issues on the effect of acquittals on jeopardy as they sail safely
home. The cases of People v. Bringas,[72] People v. Hernandez,[73] People v.
Montemayor,[74] City Fiscal of Cebu v. Kintanar,[75] Republic v. Court of
Appeals,[76] and Heirs of Tito Rillorta v. Firme,[77] to name a few, are
illustrative. Certainly, the reason behind this has not been due to a stubborn
refusal or reluctance to keep up with the Joneses, in a manner of speaking, but
to maintain fidelity to the principle carefully nurtured by our Constitution,
statutes and jurisprudence. As early as Julia v. Sotto[78] the Court warned that
without this safeguard against double jeopardy secured in favor of the accused,
his fortune, safety and peace of mind would be entirely at the mercy of the
complaining witness who might repeat his accusation as often as dismissed by
the court and whenever he might see fit, subject to no other limitation or
restriction than his own will and pleasure.
The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o
person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act." The discussions
by the members of the Constitutional Convention of 1934 on the effect on
double jeopardy of an appeal from a judgment of acquittal are
enlightening. Foreclosing appeal on a judgment of acquittal was recognized by
the Convention and the proposal to make an appeal from acquittal permissible
even only "on questions of law provided that a verdict in favor of the defendant
shall not be set aside by reason thereof" was strongly voted down. Thus -
MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The amendment
is commendable, but we submit that the reason against far outweighs the reason in favor
of it. In the first place, it would tend to multiplicity of suits and thus increase the burden of
the Supreme Court. Second, suits will be expensive if we meet fiscals who have an
exaggerated opinion of themselves, who have more ego than gray matter or more amor
propio. In the third place, as has been stated by a certain Gentleman, the provision would
convert the Supreme Court into a sort of academy of consulting body. In the fourth place,
 as pointed out by Mr. Sevilla, fights in the Supreme Court would be one-sided. In the fifth
place, as demonstrated by Delegate Labrador, the matter should be procedural rather
than constitutional. And lastly, as explained by Delegate Singson Encarnacion, should the
Supreme Court reverse the judgment of the lower court, the defendant would suffer
morally for the rest of his life. He would walk around under a veil of humiliation, carrying
with him a stigma.
For all these reasons, Mr. President, we oppose the amendment.
PRESIDENT: We can vote on the amendment. (Various delegates: YES). Those who are in
favor of the amendment please say YES. (A minority: YES). Those against the
amendment sayNO. (A majority: NO). The amendment is rejected x x x x

(1934 Constitutional Convention Record, Journal No. 95, November 24, 1934, p. 361)

The case of People v. Bringas[79] was the first case to be decided under this
Constitution pertinent to the matter at hand. There the Supreme Court, guided
by Kepner, cited its finding in United States v. Tam Yung Way[80] against the
right of appeal by the government from a judgment discharging the defendant
in a criminal case after he has been brought to trial, whether defendant was
acquitted on the merits or whether his discharge was based upon the trial courts
conclusion of law that the trial had failed for some reason to establish his guilt
as charged.
The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV
thereof, reproduced verbatim the same double jeopardy provision of the 1935
Constitution. So did the 1987 Freedom Constitution drafted by the 1986
Constitutional Commission.
Noteworthy is that during the deliberations by the 1986 Constitutional
Commission attempts were made to introduce into the Fundamental Law the
right of government to appeal verdicts of acquittal promulgated by trial
courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department read
as follows -

Sec. 12. - x x x x An appeal by the State and/or offended party from a judgment of
acquittal may be allowed in the discretion of the Supreme Court by a petition for
review on certiorari on the ground that it is manifestly against the evidence with
grave abuse of discretion amounting to lack of jurisdiction.[81]

This proposal was strongly opposed, the controlling consideration as

expressed by Commissioner Rustico de los Reyes being the "inequality of the
parties in power, situation and advantage in criminal cases where the
government, with its unlimited resources, trained detectives, willing officers and
counsel learned in the law, stands arrayed against a defendant unfamiliar with
the practice of the courts, unacquainted with their officers or attorneys, often
without means and frequently too terrified to make a defense, if he had one,
while his character and his life, liberty or property rested upon the result of the
trial."[82]
Commissioner Joaquin Bernas likewise articulated his fear that we could be
subjecting an accused individual to a very serious danger of harassment from
a prosecutor x x x x The harm, however, which will follow from waving this flag
of possibility of appeal x x x could be much more than letting a guilty person
go."[83] Put to a vote, the proposal was defeated.[84]
Then again, during the debates on double jeopardy under Sec. 23, Art. III,
on the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla
reopened the matter already settled at the deliberations on the article on the
Judiciary. The following exchanges ensued:
MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide
resolution which allowed an appeal in a judgment of acquittal in a criminal case that
states: An acquittal by a trial court is, however, appealable provided that in such event,
the accused shall not be detained or put up bail. This has been deleted by the Commission
xxxx
FR. BERNAS. Yes.
MR. PADILLA. I recall that when this same idea, but in different phraseology, was presented
and approved by the Committee on the Judiciary, the great objection was that it would
violate the immunity against double jeopardy. But I recall, the sponsor admitted, after I
had explained the day before, that it did not violate double jeopardy but it was unnecessary
and harmful.What is the real position, Mr. Presiding Officer? Is it in violation of double
jeopardy or is it just because it need not be stated in the Bill of Rights nor in the Article on
the Judiciary?
FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when we considered the
matter in the Article on the Judiciary. The position I took was that it was not a departure
from existing jurisprudence. In fact, it was more strict than existing jurisprudence in that it
required not just abuse of discretion but it also required that the judgment be clearly
against the evidence.
MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to make the exercise
of that right by the state or offended party restrictive not only through a petition for review
on certiorari in the discretion of the Supreme Court which may dismiss it outright, but also
on certain grounds that are really covered by "in excess or lack of jurisdiction."
But my common impression, Mr. Presiding Officer, is that most lawyers are of the opinion that
when a judgment of acquittal is rendered by a trial court, that is final, executory and not
appealable.
Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary judgment of
acquittal rendered by a few corrupt judges of the offended party or the state will improve
the administration of justice?
 FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this when we voted on
Third Reading on the Article on the Judiciary. But if the Commissioner wants to raise the
matter for reconsideration, he can present a motion on the floor.
Padilla did not ask for a reconsideration.[85]
The Rules of Court on Criminal Procedure relative to double jeopardy and
the effect thereon of acquittals adhere strictly to constitutional provisions. The
pertinent portions of Sec. 7 of Rule 117 thereof provide -

Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused hadpleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information x x x x

From this procedural prescription alone, there can be no mistaking the

requisites for invoking double jeopardy: (a) a valid complaint or information; (b)
before a competent court before which the same is filed; (c) the defendant had
pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or
the case against him dismissed or otherwise terminated without his express
consent.[86] It bears repeating that where acquittal is concerned, the rules do not
distinguish whether it occurs at the level of the trial court or on appeal from a
judgment of conviction. This firmly establishes the finality-of-acquittal rule in our
jurisdiction. Therefore, as mandated by our Constitution, statutes and cognate
jurisprudence, an acquittal is final and unappealable on the ground of double
jeopardy, whether it happens at the trial court level or before the Court of
Appeals.
In general, the rule is that a remand to a trial court of a judgment of acquittal
brought before the Supreme Court on certiorari cannot be had unless there is a
finding of mistrial, as in Galman v. Sandiganbayan.[87] Condemning the trial
before the Sandiganbayan of the murder of former Senator
Benigno "Ninoy" Aquino, which resulted in the acquittal of all the accused, as a
sham, this Court minced no words in declaring that "[i]t is settled doctrine that
double jeopardy cannot be invoked against this Court's setting aside of the trial
court's judgment of acquittal where the prosecution which represents the
sovereign people in criminal cases is denied due process x x x x [T]he sham
trial was but a mock trial where the authoritarian president ordered respondents
Sandiganbayan and Tanodbayan to rig the trial, and closely monitored the
entire proceedings to assure the predetermined final outcome of acquittal and
absolution as innocent of all the respondent-accused x x x x Manifestly, the
prosecution and the sovereign people were denied due process of law with a
partial court and biased Tanodbayan under the constant and pervasive
monitoring and pressure exerted by the authoritarian president to assure the
carrying out of his instructions. A dictated, coerced and scripted verdict of
acquittal, such as that in the case at bar, is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a
judgment is a lawless thing which can be treated as an outlaw. It is a terrible
and unspeakable affront to the society and the people. 'To paraphrase
Brandeis: If the authoritarian head of government becomes the lawbreaker, he
breeds contempt for the law; he invites every man to become a law unto himself;
he invites anarchy. The contention of respondent-accused that the
Sandiganbayan judgment of acquittal ended the case and could not be
appealed or reopened without being put in double jeopardy was forcefully
disposed of by the Court in People v. Court of Appeals:[88]

x x x x That is the general rule and presupposes a valid judgment. As earlier pointed
out, however, respondent Court's Resolution of acquittal was a void judgment for
having been issued without jurisdiction. No double jeopardy attaches, therefore. A
void judgment is, in legal effect, no judgment at all. By it no rights are
divested. Through it, no rights can be attained. Being worthless, all proceedings
founded upon it are equally worthless. It neither binds nor bars anyone. All acts
performed under it and all claims flowing out of it are void x x x x Private
respondents invoke 'justice for the innocent.' For justice to prevail the scales must
balance. It is not to be dispensed for the accused alone. The interests of the society
which they have wronged, must also be equally considered. A judgment of conviction
is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a
triumph of justice. To the party wronged, to the society offended, it could also mean
injustice. This is where the Courts play a vital role. They render justice where justice
is due.

Thus, the doctrine that "double jeopardy may not be invoked after trial" may
apply only when the Court finds that the criminal trial was a sham because the
prosecution representing the sovereign people in the criminal case was denied
due process.[89] The Court in People v. Bocar[90] rationalized that the "remand of
the criminal case for further hearing and/or trial before the lower courts amounts
merely to a continuation of the first jeopardy, and does not expose the accused
to a second jeopardy."[91]
The fundamental philosophy highlighting the finality of an acquittal by the
trial court cuts deep into "the humanity of the laws and in a jealous watchfulness
over the rights of the citizen, when brought in unequal contest with the State x
x x x"[92] Thus Green expressed the concern that "(t)he underlying idea, one that
is deeply ingrained in at least the Anglo-American system of jurisprudence, is
that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found guilty."[93]
It is axiomatic that on the basis of humanity, fairness and justice, an
acquitted defendant is entitled to the right of repose as a direct consequence of
the finality of his acquittal. The philosophy underlying this rule establishing the
absolute nature of acquittals is "part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful
conviction."[94] The interest in the finality-of-acquittal rule, confined exclusively to
verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to
know the exact extent of one's liability.[95] With this right of repose, the criminal
justice system has built in a protection to insure that the innocent, even those
whose innocence rests upon a jurys leniency, will not be found guilty in a
subsequent proceeding.[96]
Related to his right of repose is the defendants interest in his right to have
his trial completed by a particular tribunal.[97] This interest encompasses his right
to have his guilt or innocence determined in a single proceeding by the initial
jury empanelled to try him, for societys awareness of the heavy personal strain
which the criminal trial represents for the individual defendant is manifested in
the willingness to limit Government to a single criminal proceeding to vindicate
its very vital interest in enforcement of criminal laws.[98] The ultimate goal is
prevention of government oppression; the goal finds its voice in the finality of
the initial proceeding.[99] As observed in Lockhart v. Nelson,[100] "(t)he
fundamental tenet animating the Double Jeopardy Clause is that the State
should not be able to oppress individuals through the abuse of the criminal
process. Because the innocence of the accused has been confirmed by a final
judgment, the Constitution conclusively presumes that a second trial would be
unfair.[101]
Petitioner resists the applicability of the finality-of-acquittal doctrine to the
Philippine adjudicative process on the ground that the principle is endemic to
the American justice system as it has specific application only to jury verdicts
of acquittal, and thus finds no valid use in our jurisdiction since the underlying
rationale of jury acquittals, a special feature of American constitutional law, has
no parallel nor analogy in the Philippine legal system. This is a rather strained
if not facile approach to the issue at hand, for it attempts to introduce the theory
that insofar as the objective of factfinding is concerned, factfinding forming the
core of the philosophy behind double jeopardy, there exists adifference
between a jury acquittal and a judge acquittal, Philippine version. To support its
contention, petitioner sedulously explains that in the United States there is an
emerging consensus to differentiate the constitutional impact of jury verdicts of
acquittal vis--vis judgments of acquittal rendered by the bench. While this
consensus may have emerged in the United States, it is not difficult to surmise
that it must have been so because of countless instances of conflict between
jury verdicts and judgments of trial judges in the same case. Resultantly,
procedural statutes and jurisprudence have been wont to draw lines of
distinction between the two, hopefully to keep each other at bay. Since this
phenomenon does not occur in our jurisdiction, as we have no juries to speak
of, petitioners hypothesis is inappropriate.
Be that as it may, the invalidity of petitioners argument lies in its focus on
the instrumentality empowered to rule against the evidence, i.e., the American
jury versus the Philippine judge, no matter how emphatic it qualifies its
proposition with the phrase "underlying rationale of jury acquittals," rather than
on the essential function of factfinding itself which consists of reception, sifting
and evaluation of evidence. Where the main task of factfinding is concerned,
there exists no difference between the American jury and the Philippine trial
judge. Both are triers of facts. This much petitioner has to concede. The
attempt therefore to close the door on the applicability of the finality rule to our
legal system abjectly fails when one considers that, universally, the principal
object of double jeopardy is the protection from being tried for the second time,
whether by jury or judge.Thus, "emerging American consensus on jury
acquittals" notwithstanding, on solid constitutional bedrock is well engraved
our own doctrine that acquittals by judges on evidentiary considerations cannot
be appealed by government. The jurisprudential metes and bounds of double
jeopardy having been clearly defined by both constitution andstatute, the issue
of the effect of an appeal of a verdict of acquittal upon a determination of the
evidence on the constitutionally guaranteed right of an accused against being
twice placed in jeopardy should now be finally put to rest.
Petitioner assails the decision rendered by the court a quo as blatantly
inconsistent with the material facts and evidence on record, reason enough to
charge respondent judge with grave abuse of discretion amounting to lack of
jurisdiction resulting in a denial of due process. Citing People v. Pablo,[102] it
alleges that "respondent aggravated his indiscretion by not x x x reviewing
the evidence already presented for a proper assessment x x x x It is in
completely ignoring the evidence already presented x x x that the respondent
judge committed a grave abuse of discretion." It adds that "discretion must be
exercised regularly, legally and within the confines of procedural due process,
i.e., after evaluation of the evidence submitted by the prosecution. Any order
issued in the absence thereof is not a product of sound judicial discretion but of
whim and caprice and outright arbitrariness."[103]
Private respondent remonstrates against the propriety
of petitioners certiorari as a mode of impugning the judgment of acquittal not
only as a strategy to camouflage the issue of double jeopardy but also for the
fact that, contrary to petitioners assertions, evidence in the case at bar was
subjected to scrutiny, review, assessment and evaluation by respondent trial
judge. By reason thereof, there cannot be perceived grave abuse of discretion
on the part of the judge to warrant issuance of the great writ of certiorari.
We agree. The office of the common law writ of certiorari is to bring before
the court for inspection the record of the proceedings of an inferior tribunal in
order that the superior court may determine from the face of the record whether
the inferior court has exceeded its jurisdiction, or has not proceeded according
to the essential requirements of the law. However, the original function and
purpose of the writ have been so modified by statutes and judicial decisions. It
is particularly so in the field of criminal law when the state is applying for the
writ and problems arise concerning the right of the state to appeal in a criminal
case. As a general rule, the prosecution cannot appeal or bring error
proceedings from a judgment in favor of the defendant in a criminal case in the
absence of a statute clearly conferring that right. The problem comes into
sharper focus when the defendant contends, in effect, that the prosecution is
attempting to accomplish by the writ what it could not do by appeal, and that his
constitutional rights are being thus encroached upon.[104]
Generally, under modern constitutions and statutes, provisions are
available as guides to the court in determining the standing of the prosecution
to secure by certiorari a review of a lower court decision in a criminal case which
has favored the defendant. In most instances, provisions setting forth the scope
and function of certiorari are found together with those relating to the right of
the state to appeal or bring error in criminal matters. There is some indication
that courts view the writ of certiorari as an appeal in itself where the applicant
shows that there is no other adequate remedy available,[105] and it is not
uncommon to find language in cases to the effect that the state should not be
permitted to accomplish by certiorari what it cannot do by appeal.[106] Thus, if a
judgment sought to be reviewed was one entered after an acquittal by a jury or
the discharge of the accused on the merits by the trial court, the standing of the
prosecution to review it by certiorari is far more likely to be denied than if it were
such an order as one sustaining a demurrer to, or quashing the indictment, or
granting a motion for arrest of judgment after a verdict of guilty.[107]
 Philippine jurisprudence has been consistent in its application of the Double
Jeopardy Clause such that it has viewed with suspicion, and not without good
reason, applications for the extraordinary writ questioning decisions acquitting
an accused on ground of grave abuse of discretion.
The petition at hand which seeks to nullify the decision of respondent judge
acquitting the accused Honorato Galvez goes deeply into the trial court's
appreciation and evaluation in esse of the evidence adduced by the parties. A
reading of the questioned decision shows that respondent judge considered the
evidence received at trial. These consisted among others of the
testimonies relative to the positions of the victims vis--vis the accused and the
trajectory, location and nature of the gunshot wounds, and the opinion of the
expert witness for the prosecution. While the appreciation thereof may have
resulted in possible lapses in evidence evaluation, it nevertheless does not
detract from the fact that the evidence was considered and passed upon. This
consequently exempts the act from the writs limiting requirement of excess or
lack of jurisdiction. As such, it becomes an improper object of and therefore
non-reviewable by certiorari. To reiterate, errors of judgment are not to be
confused with errors in the exercise ofjurisdiction.
WHEREFORE, the instant petition for certiorari is DISMISSED.
SO ORDERED.
Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and Puno, J., agree with J. Panganibans separate
opinion.
Melo, J., in the result.
Panganiban, J., see separate opinion.
Ynares-Santiago, J., on leave.

SEPARATE OPINION

PANGANIBAN, J.:

I concur with Justice Josue N. Bellosillo that the Petition at bar should be
dismissed on two grounds: (1) the private respondent (defendant in the criminal
case below) is already dead, so this Petition has become moot and
academic;1 and, in any event, (2) the petitioner has failed to show that public
respondent, in issuing the assailed Decision, had acted without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
 I write, however, to stress that a petition for certiorari under Rule 65 of the
Rules of Court is a proper remedy to challenge an acquittal on the ground that
the trial court had acted without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. This is a hornbook doctrine. As held
by the Court in People v. Court of Appeals & Maquiling:2

To question the jurisdiction of the lower court or agency exercising judicial or quasi-
judicial functions, the remedy is a special civil action for certiorari under Rule 65 of
the Rules of Court. The petitioner in such cases must clearly show that the public
respondent acted without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction.3 By grave abuse of discretion is meant such capricious
or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse
of discretion must be patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.4

xxx [H]owever, xxx no grave abuse of discretion may be attributed to the public
respondent on the ground of misappreciation of facts and evidence.5 A writ of
certiorari may not be used to correct a lower tribunals evaluation of the evidence and
factual findings. In other words, it is not a remedy for mere errors of judgment, which
are correctible by an appeal or a petition for review under Rules 45 of the Rules of
Court.6

In fine, certiorari will issue only to correct errors of jurisdiction, not errors of
procedure or mistakes in the findings or conclusions of the lower court.7 As long as a
court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than errors of judgment, which are reviewable
by timely appeal, not by a special civil action for certiorari.8

By contending that the challenged Decision is void for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
petition does not violate the right of the accused against double jeopardy. It is
elementary that double jeopardy attaches only when the following elements
concur: (1) the accused are charged under a complaint or information sufficient
in form and substance to sustain their conviction; (2) the court has jurisdiction;
(3) the accused have been arraigned and have pleaded; and (4) they are
convicted or acquitted, or the case is dismissed without their consent.9
Thus, even assuming that a writ of certiorari is granted, the accused would
not be placed in double jeopardy because, from the very beginning, the lower
tribunal had acted without jurisdiction. Precisely, any ruling issued without
jurisdiction is, in legal contemplation, necessarily null and void and does not
exist.10 In criminal cases, it cannot be the source of an acquittal.
The instant Petition for Certiorari, however, fails to show grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the trial
court. Rather, it effectively urges this Court to re-evaluate the lower courts
appreciation of the evidence, which cannot be done by certiorari. As held also
in Maquiling:

While certiorari may be used to correct an abusive acquittal, the petitioner in such
extraordinary proceeding must clearly demonstrate that the lower court blatantly
abused its authority to a point so grave as to deprive it of its very power to dispense
justice. On the other hand, if the petition, regardless of its nomenclature, merely calls
for an ordinary review of the findings of the court a quo, the constitutional right
against double jeopardy would be violated. Such recourse is tantamount to converting
the petition for certiorari into an appeal, contrary to the express injunction of the
Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy.

WHEREFORE, I VOTE TO DISMISS the Petition.

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 74989-90 November 6, 1989

JOEL B. CAES, petitioner,

vs.
Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon. ALFREDO
M. GORGONIO, in his capacity as the Presiding Judge of the Regional Trial Court of Caloocan
City, Branch CXXV, National Capital Region and PEOPLE OF THE PHILIPPINES, respondents.

Sanchez & Montebon Law Office for petitioner.

CRUZ, J.:

We deal with a simple matter that should not detain us too long. Fittingly, we shall decide it in favor
of individual liberty rather than upon rebuttable presumptions and dubious implications.

The facts are simple and mostly undisputed.

On November 21, 1981, petitioner Joel Caes was charged in two separate informations with illegal
possession of firearms and illegal possession of marijuana before the Court of First Instance of
Rizal. 1 The cases were consolidated on December 10, 1981. 2

Arraignment was originally scheduled on January 11, 1982, but was for some reason postponed. 3

On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduled for October
13, 1982, but this was reset upon agreement of the parties. 5

On November 15, 1982, the trial was again postponed for reasons that do not appear in the record. 6

On December 20, 1982, the trial was again postponed because the prosecution witnesses were
absent. 7

On January 19, 1983, the third resetting of the case was also canceled, no reason appearing in the
record. 8

On February 21, 1983, no trial could be held again, the because witnesses being absent. 9

On March 21, 1983, the trial was reset once more, again because the prosecution witnesses were
absent. 10

On April 19, 1983, the trial of the case had not yet started. It was reset because the prosecution
witnesses were again absent. 11

On June 3, 1983, a sheriffs return informed the trial court that the prosecution witnesses, namely,
Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had been personally served with subpoena to
appear and testify at the hearing scheduled on June 6, 1983. 12

On June 6, 1983, the trial was again postponed, this time because there was no trial fiscal. 13

On July 12, 1983, trial was reset for lack of material time. 14

On September 6, 1983, The trial was once more reset by agree-judgment of the parties. 15

On October 19, 1983, the trial was reset to November 14, 1983. 16

On November 14, 1983, the prosecution moved for the provisional dismissal of the case because its
witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonio issued the following
order:

In view of the failure of the prosecution witnesses to appear on several scheduled

hearing and also for the hearing today which is an indication of lack of interest, upon
motion of the trial fiscal for the provisional dismissal of these cases and with the
conformity of the accused, the above-entitled cases are hereby ordered Provisionally
Dismissed, with costs de oficio. 17

On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he had been promoted
in the meantime) and Sgt. Lustado who alleged that they could not attend the hearing scheduled on
November 14, 1983, for lack of notice. 18 Copy of the motion was furnished the City Fiscal of
Caloocan City but not the petitioner.
On May 18, 1984, the respondent judge issued the following order:

Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by
the complaining witnesses to which no opposition has been filed either by the Fiscal
or the defense, and considering that the dismissal of these cases was only
provisional, for reasons stated in the motion, the same is granted.

WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in
the morning. 19

A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied on October 9,
1984, and the revived cases were set from hearing on November 19, 1984. 20

The petitioner questioned the judge's order on certiorari with this Court, which reffered his petition to
the respondent court. The petition there was dismissed for lack of merit on May 20, 1986, and
reconsideration was denied on June 17, 1986. 21 Caes then came to us again.

The present petition is based on two arguments, to wit: (a) that the motion to revive the cases was
invalid because it was riot filed by the proper party nor was a copy served on the petitioner; and (b)
the revival of the cases would place the petitioner double jeopardy in violation of the Bill of Rights.

We sustain the petitioner on both counts.

It is axiomatic that the prosecution of a criminal case is the responsibility of the government
prosecutor and must always be under his control. 22 This is true even if a private prosecutor is
allowed to assist him and actually handles the examination of the witnesses and the introduction of
other evidence. 23 The witnesses, even if they are the complaining witnesses, cannot act for the
prosecutor in the handling of the case. Although they may ask for the filing of the case, they have no
personality to move for its dismissal or revival as they are not even parties thereto nor do they
represent the parties to the action. Their only function is to testify. In a criminal prosecution, the
plaintiff is represented by the government prosecutor, or one acting under his authority, and by no
one else.

It follows that the motion for the revival of the cases filed by prosecution witnesses (who never even
testified) should have been summarily dismissed by the trial judge. The mere fact that the
government prosecutor was furnished a copy of the motion and he did not interpose any objection
was not enough to justify the action of these witnesses. The prosecutor should have initiated the
motion himself if he thought it proper. The presumption that he approved of the motion is not
enough, especially since we are dealing here with the liberty of a person who had a right at least to
be notified of the move to prosecute him again. The fact that he was not so informed made the
irregularity even more serious. It is curious that the motion was granted just the same, and ex
parte at that and without hearing, and the petitioner's subsequent objection was brushed aside.

On the second issue, the position of the public respondent is that double jeopardy has not attached
because the case was only provisionally dismissed and it was with the conformity of the accused.
The petitioner denies that he consented to the dismissal and submits that the dismissal was final
notwithstanding its description.

Fittingly described as "res judicata in prison grey," the right against double jeopardy prohibits the
prosecution of a person for a crime of which he has been previously acquitted or convicted. The
purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall
not thereafter be subjected to the danger and anxiety of a second charge against him for the same
offense.

It has been held in a long line of cases 24 that to constitute double jeopardy, there must be: (a) a valid
complaint or information; (b) filed before a competent court; (c) to which the defendant had pleaded;
and (d) of which he had been previously acquitted or convicted or which was dismissed or otherwise
terminated without his express consent.

There is no question that the first three requisites are present in the case at bar. What we must
resolve is the effect of the dismissal, which the petitioner contends finally and irrevocably terminated
the two cases against him. His submission is that the dismissal was not provisional simply because it
was so designated, more so since he had not expressly consented thereto.

It is settled that a case may be dismissed if the dismissal is made on motion of the accused himself
or on motion of the prosecution with the express consent of the accused. 25 Such a dismissal is
correctly denominated provisional. But a dismissal is not provisional even if so designated if it is
shown that it was made without the express consent of the accused. This consent cannot be
presumed nor may it be merely implied from the defendant's silence or his failure to object. As we
have held in a number of cases, such consent must be express, so as to leave no doubt as to the
defendant's conformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice to the
refiling of the case.

There are instances in fact when the dismissal will be held to be final and to dispose of the case
once and for all even if the dismissal was made on motion of the accused himself. The first is where
the dismissal is based on a demurrer to the evidence filed by the accused after the prosecution has
rested. Such dismissal has the effect of a judgment on the merits and operates as an acquittal.
In People v. City of Silay, 27 for example, the trial court dismissed the case on motion of the accused
on the ground of insufficiency of the prosecution evidence. The government came to this Court
on certiorari, and the accused pleaded double jeopardy. Our finding was that the case should not
have been dismissed because the evidence submitted by the prosecution was not insufficient. Even
so, the petitioner had to be denied relief because the dismissal amounted to an acquittal on the
merits which was therefore not appealable. Justice Muñoz-Palma said: "However erroneous the
order of the respondent Court is, and although a miscarriage of justice resulted from said order, such
error cannot now be lighted because of the timely plea of double jeopardy."

The other exception is where the dismissal is made, also on motion of the accused, because of the
denial of his right to a speedy trial. This is in effect a failure to prosecute. Concerning this right, the
ruling in the old case of Conde v. Rivera 28 is still valid doctrine. Here the prosecution was dismissed
because the accused was made to "dance attendance on courts" and subjected to no less than eight
unjustified postponements extending over a year that unduly delayed her trial. In dismissing the
charges against her, Justice Malcolm declared for a unanimous Supreme Court:

On the one hand has been the petitioner, of humble station, without resources, but
fortunately assisted by a persistent lawyer, while on the other hand has been the
Government of the Philippine Islands which should be the last to set an example of
delay and oppression in the administration of justice. The Court is thus under a moral
and legal obligation to see that these proceedings come to an end and that the
accused is discharged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good
cause, secures postponements of the trial of a defendant against his protest beyond
 a reasonable period of time, as in this instance for more than a year, the accused is
entitled to relief ...

The case at bar is not much different from Conde. As the record shows, the petitioner was arraigned
on August 31, 1982, but was never actually tried until the cases were dismissed on November 14,
1983, following eleven postponements of the scheduled hearings, mostly because the prosecution
was not prepared. The accused was never absent at these aborted hearings. He was prepared to be
tried, but either the witnesses against him were not present, or the prosecutor himself was absent, or
the court lacked material time. Meantime, the charges against him continued to hang over his head
even as he was not given an opportunity to deny them because his trial could not be held.

Under these circumstances, Caes could have himself moved for the dismissal of the cases on the
ground of the denial of his right to a speedy trial. This would have been in keeping with People v.
Cloribel, 29 where the case dragged for almost four years due to numerous postponements, mostly at
the instance of the prosecution, and was finally dismissed on motion of the defendants when the
prosecution failed to appear at the trial. This Court held "that the dismissal here complained of was
not truly a dismissal but an acquittal. For it was entered upon the defendants' insistence on their
constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of
trial."

The circumstance that the dismissal of the cases against the petitioner was described by the trial
judge as "provisional" did not change the nature of that dismissal. As it was based on the "lack of
interest" of the prosecutor and the consequent delay in the trial of the cases, it was final and
operated as an acquittal of the accused on the merits. No less importantly, there is no proof that
Caes expressly concurred in the provisional dismissal. Implied consent, as we have repeatedly held,
is not enough; neither may it be lightly inferred from the presumption of regularity, for we are dealing
here with the alleged waiver of a constitutional right. Any doubt on this matter must be resolved in
favor of the accused.

We conclude that the trial judge erred in ordering the revival of the cases against the petitioner and
that the respondent court also erred in affirming that order. Caes having been denied his
constitutional right to a speedy trial, and not having expressly consented to the "provisional"
dismissal of the cases against him, he was entitled to their final dismissal under the constitutional
prohibition against double jeopardy. 30

The Court expresses its stern disapproval of the conduct in these cases of the Office of the City
Prosecutor of Caloocan City which reveals at the very least a lack of conscientiousness in the
discharge of its duties. The informations appear to have been filed in haste, without first insuring the
necessary evidence to support them. The prosecution witnesses repeatedly failed to appear at the
scheduled hearings and all the prosecution did was to perfunctorily move for a resetting, without
exerting earnest efforts to secure their attendance. In the end, it moved for the "provisional"
dismissal of the cases without realizing, because it had not studied the matter more carefully, that
such dismissal would have the effect of barring their reinstatement. Characteristically, it was also
non-committal on the motion to revive the cases filed by the prosecution witnesses only, thereby
surrendering, by its own silence, its authority in conducting the prosecution.

It is possible that as a result of its in attention, the petitioner has been needlessly molested if not
permanently stigmatized by the unproved charges. The other possibility, and it is certainly worse, is
that a guilty person has been allowed to escape the penalties of the law simply because he may now
validly claim the protection of double jeopardy. In either event, the responsibility clearly lies with the
Office of the City Prosecutor of Caloocan City for its negligence and ineptitude.
WHEREFORE, the petition is GRANTED. The challenged decision of the respondent court dated
May 20, 1986, and the orders of the trial court dated May 18, 1984, and October 9, 1984, are SET
ASIDE. The dismissal of Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as
final.

Let a copy of this decision be sent to the Secretary of Justice.

SO ORDERED.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-43790 December 9, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE CITY COURT OF SILAY, ERNESTO DE LA PAZ, PACIFICO SENECIO, JR. y SEBUSA,
ROMEO MILLAN y DELEJERO and WILFREDO JOCHICO y MAGALONA, respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and
Solicitor Enrique M. Reyes for petitioner.

Hilado, Hagad & Hilado as private prosecutors.

Benjamin Z. Yelo, Sr. for private respondent Romeo Millan.

Ciceron Severino and Emeterio Molato for other private respondents.

MUÑOZ PALMA, J.:

This is a Petition for Review jointly filed by the City Fiscal of Silay City, Marcelino M. Paviera, and
the Law Offices of Hilado, Hagad & Hilado, the latter as private prosecutors, praying that an order of
the City Court of Silay dated December 19, 1975, issued by Judge Reynaldo M. Alon, dismissing
Criminal Case No. 7124-C entitled "People vs. Ernesto de la Paz, et al." be set aside and that
respondent court be directed to continue with the trial of the aforementioned case. *

In compliance with Our Resolution of July 21, J976, the Office of the Solicitor General filed its
comment on October 13, 1974, joining the Petitioner's prayer that the order of respondent court of
December 19, 1975, be reversed and the case remanded for further proceedings.
The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa
Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by
private individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal
Code, alleged to have been committed as follows.

That sometime on January 4, 1974, at Hawaiian-Philippine Company, Silay City,

Philippines, and within the jurisdiction of this Honorable Court, the accused Ernesto
de la Paz, overseer of Hda. Malisbog belonging to Deogracias de la Paz, and the
other three accused, scalers of Hawaiian-Philippine Company, with intent of gain and
to cause damage by conniving, cooperating and mutually helping one another did
then and there wilfully, unlawfully and feloniously alter or falsify the sugar cane
weight report card or "tarjeta", a private document showing the weight of sugarcane
belonging to Deogracias de la Paz, particularly those loaded in cane cars Nos. 1686,
1743 and 1022 by increasing the total actual weight of 22.005 tons to 27.160 tons for
said three cane cars, thereby causing damage to the central and other cane planters
of about 8.68 piculs of sugar valued in the total amount of P618.19, to the damage
and prejudice of Hawaiian Central and other sugarcane planters adhered thereto in
the aforestated amount of P618.19.

IN VIOLATION OF PARAGRAPH 2, ART. 172, R.P.C. (p. 14, rollo) Evidence was
presented by the prosecution showing that:

On January 4, 1974, accused Pacifico Senecio, Jr. Romeo Millan and Wilfredo
Jochico who were then scalers on duty that day at the Hawaiian-Philippine Company,
weighed cane cars Nos. 1743,1686 and 1022 loaded with sugar canes belonging to
Deogracias de la Paz. The weight of the sugar canes were reflected on the weight
report cards (H.P. Co. Lab. Form No. 1) or "tarjetas" showing that for car No. 1743 —
8.920 tons (Exhibit "B-1"), for Car No. 1686 — 8.970 tons (Exhibit "C-1") for car No.
1022 — 8.875 tons or a total weight of 26.765 tons. However, they did not submit
said "tarjetas" to the laboratory section, instead, they substituted "tarjetas" showing a
heavier weight for car No. 1743 — 10.515 tons (Exhibit "B"), car No. 1686 — 10.525
tons (Exhibit "C") and car No. 1022 — 10.880 tons (Exhibit "D") with a total of 27.160
tons or an additional of 5.155 tons. These were the "tarjetas" submitted to the
laboratory section. Exhibits "B-1", "C-1" and "D-1" were taken later by the
prosecution witness PC Sgt. Rogelio Sevilla from the wife of Pacifico Senecio, Jr.
(pp. 15-16, rollo, Order of December 19, 1975).

After the prosecution had presented its evidence and rested its case, private respondents moved to
dismiss the charge against them on the ground that the evidence presented was not sufficient to
establish their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its
order of December 19, 1975, dismissing the case with costs de oficio principally on the ground that
the acts committed by the accused as narrated above do not constitute the crime of falsification as
charged. Reasoning out his order, Judge Alon said:

To be convicted under paragraph 2, Article 172, an accused should have committed

one of the eight acts of falsification enumerated under Article 171, R.P.C. Is the act
of substituting the "tarjetas" with higher cane weight for the ones with lower cane
weight fall under one of the acts enumerated. After going over the acts of falsification
one by one and trying to correlate the act of the accused with each of them, the
Court finds that the said act could not possibly be placed under any of them. Inclusio
unius est exclusio alterius, the inclusion of one is the exclusion of the other.
Following this maxim, we cannot just include the act of substitution as among those
 acts enumerated under Article 171. And, under the rule of statutory construction,
penal laws should be liberally construed in favor of the accused. This Court,
therefore, is of the opinion that the accused have not committed the act of
falsification with which they are charmed. Obviously, it follows that there could be no
use of falsified document since there is no falsified document.

The imputed acts of the accused in making the substitution, if true, is repugnant to
the human sense of right and wrong. But, however reprehensible the act may be, it is
not punishable unless there is a showing that there is a law which defines and
penalizes it as a crime. Unless there be a particular provision in the Penal Code or
Special Law that punishes the act, even if it be socially or morally wrong, no criminal
liability is incurred by its commission. (U.S. vs. Taylor, 28 Phil. 599)

xxx xxx xxx

Wherefore, the motion is hereby granted and the case dismissed with costs de
oficio ... (pp. 17-18, rollo)

In their comment on this Petition, private respondents claim that there was no error committed by
respondent court in dismissing the case against them for insufficiency of evidence and that for this
Court to grant the present petition would place said respondents in double jeopardy.

On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as
the case was dismissed upon motion of the accused, and the dismissal having been made with their
consent, they waived their defense of double jeopardy, citing various cases in support thereof. (pp.
58-59, rollo, Comment of the Solicitor General)

We disagree with the position taken by the Acting Solicitor General Hugo E. Gutierrez, Jr. that the
plea of double jeopardy is not available in the instant situation.

It is true that the criminal case of falsification was dismissed on motion of the accused; however, this
was a motion filed after the prosecution had rested its case, calling for an appreciation of the
evidence adduced and its sufficiency to warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an acquittal of the accused.

Thus, in People vs. Acosta, L-23657, October 29, 1968, this Court dismissed an appeal taken by
the People against an order of the Court of First Instance of Ilocos Norte dismissing a criminal case
upon motion of the accused after the presentation of evidence by the prosecution as such appeal if
allowed would place the accused in double jeopardy. There the accused was charged with estafa by
obtaining from Pedro Miguel a ring valued at P16,500.00 and issuing a check for $5,000.00 in
Payment thereof which turned out later to be counterfeit to the damage and prejudice of said Pedro
Miguel in the aforementioned amount of P16,500.00. After the presentation of the evidence of the
prosecution, the accused moved to dismiss the case on the ground that the evidence showed that
the ring belonged to somebody else, Banang Jaramillo, and not to Pedro Miguel as alleged in the
information and that the element of damage was absent. This motion was opposed by the Assistant
Provincial Fiscal but notwithstanding said opposition, the trial court dismissed the case on the
ground that Pedro Miguel was a mere agent of the true owner of the ring and therefore not the real
offended party. The Assistant Provincial Fiscal appealed to this Court, but the Solicitor General
moved for the dismissal of the appeal on the ground that it would place the accused in double
jeopardy, and the Court agreed with the Solicitor General, stating that it cannot be seriously
questioned that the trial court had grievously erred in his conclusion and application of the law, and
in dismissing outright the case; however, the error cannot now be remedied by an appeal because it
would place the accused in double jeopardy. (per Eugenio Angeles, J., 25 SCRA 823,826)

In the earlier case of Catilo vs. Hon. Abaya, May 14, 1954, petitioner Catilo was charged with murder
before the Court of First Instance of Batangas presided by respondent Judge. Petitioner was
arraigned and after the prosecution had rested its case petitioner moved for the dismissal of the
charge for insufficiency of evidence. This motion was granted by the Judge and his order was
promulgated in open court to the accused. Later in the day, Judge Abaya set aside his order of
dismissal motu proprio and scheduled the case for continuation of the trial on specific dates. A
motion for reconsideration was filed by the defense counsel but because respondent Judge failed to
take action, the accused filed an original action for certiorari with this Court. In granting relief to
petitioner Catilo, the Court, through Justice Marcelino R. Montemayor, held:

From whatever angle we may view the order of dismissal Annex "A", the only
conclusion possible is that it amounted to an acquittal. Whether said acquittal was
due to some "misrepresentation of facts" as stated in the order of reconsideration,
which alleged misrepresentation is vigorously denied by the defendant-petitioner, or
to a misapprehension of the law or of the evidence presented by the prosecution, the
fact is that it was a valid order or judgment of acquittal, and thereafter the respondent
Judge himself advised the accused in open court that he was a free man and could
not again be prosecuted for the same offense.

The inherent powers of a court to modify its order or decision, under section 5, Rule
124 of the Rules of Court claimed for the respondent to set aside his order of
dismissal, does not extend to an order of dismissal which amounts to a judgment of
acquittal in a criminal case; and the power of a court to modify a judgment or set it
aside before it has become final or an appeal has been perfected, under section 7,
Rule 116 of the Rules of Court, refers to a judgment of conviction and does not and
cannot include a judgment of acquittal.

In conclusion, we hold that to continue the criminal case against the petitioner after
he had already been acquitted would be putting him twice in jeopardy of punishment
for the same offense. ... (94 Phil. 1017)

The cases cited by the Acting Solicitor General are not applicable to the situation now before Us
because the facts are different. In Co Te Hue vs. Judge Encarnacion , 94 Phil. 258, the case was
dismissed provisionally with the express consent of the accused. The same occurred in People vs.
Togle, 105 Phil. 126 there was a provisional dismissal upon express request of the counsel for the
accused, In Gandicela vs. Lutero, 88 Phil. 299, it was the accused who asked for the dismissal of the
case because the private prosecutor was not in court to present the prosecution's evidence and the
Municipal Court of the City of Iloilo dismissed the case without prejudice to the refiling of the charge
against the accused. 1 In People vs. Romero, 89 Phil. 672, the dismissal was made at the instance of
the accused because the prosecution was also not ready with its evidence. The case of People vs.
Belosillo, 9 SCRA 836, is not applicable either, because the order of dismissal of the Information
was made before arraignment, hence, the accused was not yet placed in jeopardy of punishment for
the offense charged.

In the case of the herein respondents, however, the dismissal of the charge against them was one
on the merits of the case which is to be distinguished from other dismissals at the instance of the
accused. All the elements of double jeopardy are here present, to wit: (1) a valid information
sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of
competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had
rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits,
the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.

It is clear to Us that the dismissal of the criminal case against the private respondents was
erroneous.

As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged
with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the
accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in
"tarjetas" which were submitted to the laboratory section of the company. The act of making a false
entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having
made untruthful statements in a narration of facts which they were under obligation to accomplish as
part of their duties- Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as
scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the
latter.

However erroneous the order of respondent Court is, and although a miscarriage of justice resulted
from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil, 1133, such error
cannot now be righted because of the timely plea of double jeopardy.

In Nieto, the background of the case is as follows: On September 21, 1956, an Information for
homicide was filed with the Court of First Instance of Nueva Ecija against Gloria Nieto who, upon
arraignment pleaded guilty to the charge but -notwithstanding that plea, the trial judge acquitted her
on the Page 254 ground that although the accused was a minor "over 9 and under 15 years old" the
Information failed to allege that she acted with discernment. Thereafter the prosecution filed another
Information for the same offense stating therein that the accused Gloria Nieto was "a child between
9 and 15 years" and alleging in express terms that she acted with discernment. The defense filed a
motion to quash this second Information on grounds of double jeopardy, and the trial court already
presided by another Judge, Hon. Felix V. Makasiar, now Justice of this Court, granted the motion.
The prosecution appealed to this Court from said order. In its Decision, the Court dismissed the
appeal and sustained the order of then Judge Makasiar, deploring that as a result of a mistaken view
taken by the trial judge who acquitted the accused Gloria Nieto despite her plea of guilty there was a
miscarriage of justice which cannot be righted and which leaves the Court no choice bat to affirm the
dismissal of the second Information for reasons of double jeopardy.2

We cannot but express Our strong disapproval of the precipitate action taken by Judge Alon in
dismissing the criminal case against the private respondents at that stage of the trial. A thorough and
searching study of the law, the allegations in the Information, and the evidence adduced plus a more
circumspect and reflective exercise of judgment, would have prevented a failure of justice in the
instant case. We exhort Judge Alon to take into serious consideration what We have stated so as to
avoid another miscarriage of justice.

IN VIEW OF THE FOREGOING, We are constrained to DISMISS this Petition of the People. Without
pronouncement as to costs. Let copy of this Decision be entered in the personal file of Judge
Reynaldo Alon.

So Ordered.

Teehankee (Chairman), Makasiar, Concepcion, and Martin, JJ., concur.

EN BANC
G.R. No. 149453 October 7, 2003

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE

PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY
PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO
ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.

RESOLUTION

CALLEJO, SR., J.:

Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion;1 (b) Motion
for Reconsideration;2 (c) Supplement to Motion for Reconsideration;3 (d) Motion To Set for Oral
Arguments.4

The Omnibus Motion

The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which
granted the petitioners’ motion for reconsideration. The respondent thereafter prays to allow
Associate Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C. Morales, Romeo J.
Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that
such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner,
participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for
Reconsideration. The respondent points out that the aforenamed members of the Court were
appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and
after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No.
99-8-09-SC5 specifically provides that it applies only to the divisions of the Court, it should likewise
apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution
dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for
reconsideration and its supplement. As such, according to the respondent, the instant case should
be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court.

The Court resolves to deny the respondent’s motion for lack of merit.

The records show that as early as May 24, 2002, the respondent filed an urgent motion for the
recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they
were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the
integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit
themselves and decided to participate in the deliberation on the petition.6 On March 18, 2003, the
respondent filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on
account of his voluntary inhibition when the case was pending before the Court of Appeals.

On March 25, 2003, this Court issued a resolution denying the respondent’s Motion dated March 18,
2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution
of the Court in which he prayed, inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-
8-09-SC and that the case be re-raffled to another member of the Court who had actually
participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent
likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the
reason that they were appointed to the Court after the oral arguments on February 19, 2002 and
after the case had already been submitted for decision.

On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the
respondent.7 The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned to the
divisions of the Court:

The respondent’s reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by the
respondent, the said circular is applicable only to motions for reconsideration in cases assigned to
the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had
always been and still is, if the ponente is no longer with the Court, his replacement will act upon the
motion for reconsideration of a party and participate in the deliberations thereof. This is the reason
why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1,
2003 Resolution of the Court.8

The Court also ruled that there was no need for its newest members to inhibit themselves from
participating in the deliberation of the respondent’s Motion for Reconsideration:

Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not
yet members of the Court during the February 18, 20029 oral arguments before the Court,
nonetheless they were not disqualified to participate in the deliberations on the petitioner’s motion for
reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for
reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on
the motion for reconsideration of the respondent. When the Court deliberated on petitioners’ motion
for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna
were already members of the Court.

It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing
and oral arguments of the parties are parts of the records of this case. Said transcripts are available
to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao,
Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the
said transcripts and the records of this case they are informed of what transpired during the hearing
and oral arguments of the parties.10

It is thus clear that the grounds cited by the respondent in his omnibus motion had already been
passed upon and resolved by this Court. The respondent did not make any new substantial
arguments in his motion to warrant a reconsideration of the aforesaid resolutions.

Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna
only after they had already concurred in the Court’s Resolution dated April 1, 2003. Case law has it
that a motion for disqualification must be denied when filed after a member of the Court has already
given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to
speculate upon the action of the Court, only to raise an objection of this sort after a decision has
been rendered.11

The Motion to Set the Case for Oral Arguments

The Court denies the motion of the respondent. The parties have already extensively discussed the
issues involved in the case. The respondent’s motion for reconsideration consists of no less than a
hundred pages, excluding the supplement to his motion for reconsideration and his reply to the
petitioners’ comment on his motion. There is no longer a need to set the instant case for oral
arguments.
The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised Rules of
Criminal Procedure – Whether Prospective or Retroactive

The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter
reinstate its Resolution of May 28, 2002.

He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in
applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should
be applied prospectively and retroactively without reservations, only and solely on the basis of its
being favorable to the accused. He asserts that case law on the retroactive application of penal laws
should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists
that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional
right of the accused to a speedy disposition of his case. It is primarily a check on the State to
prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused
anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no
other conclusion: the rule should have retroactive application, absent any provision therein that it
should be applied prospectively. Accordingly, prospective application thereof would in effect give the
petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus
violating the respondent’s right to due process and equal protection of the law.

The respondent asserts that Section 8 was meant to reach back in time to provide relief to the
accused. In this case, the State had been given more than sufficient opportunity to prosecute the
respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir,
Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the
petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112
beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed
to derail his bid for the Senate.

In their comment on the respondent’s motions, the petitioners assert that the prospective application
of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in
part that the rules of procedure which the Court may promulgate shall not diminish, increase or
modify substantial rights. While Section 8 secures the rights of the accused, it does not and should
not preclude the equally important right of the State to public justice. If such right to public justice is
taken away, then Section 8 can no longer be said to be a procedural rule. According to the
petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not
be given a retroactive application. They contend that the right of the accused to a speedy trial or
disposition of the criminal cases applies only to outstanding and pending cases and not to cases
already dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be
taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of
conducting a preliminary investigation, and not the actual filing of the criminal complaint or
information in court for trial. Furthermore, according to the petitioners, the offended parties must be
given notices of the motion for provisional dismissal of the cases under Section 8 since the provision
so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into
consideration, the two-year period had not yet even commenced to run.

In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is
proscribed from refiling a criminal case if it can be shown that the delay resulted in a violation of the
right of the accused to due process. In this case, there was an inordinate delay in the revival of the
cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same
witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar
but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the
petitioners’ contention, the respondent posits that the revival of the cases contemplated in Section 8
refers to the filing of the Informations or complaints in court for trial. The operational act then is the
refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the
two-year bar.

The Court finds the respondent’s contentions to be without merit.

First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5
of the Constitution which reads:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the
accused. It must be noted that the new rule was approved by the Court not only to reinforce the
constitutional right of the accused to a speedy disposition of the case. The time-bar under the new
rule was fixed by the Court to excise the malaise that plagued the administration of the criminal
justice system for the benefit of the State and the accused; not for the accused only. The Court
emphasized in its assailed resolution that:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the
accused and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in
fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly
and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It
took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar
fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice.12

In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may
make the rule prospective where the exigencies of the situation make the rule prospective. The
retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the
Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own
distinct functions, its own background or precedent, and its own impact on the administration of
justice, and the way in which these factors combine must inevitably vary with the dictate involved.13

Matters of procedure are not necessarily retrospective in operation as a statute.14 To paraphrase the
United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of
adherence may make a choice for itself between the principle of forward operation and that of
relating forward.15

The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the
Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to
determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144
of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion
their application would not be feasible or would work injustice, in which event, the former procedure
shall apply.16

The absence of a provision in Section 8 giving it prospective application only does not proscribe the
prospective application thereof; nor does it imply that the Court intended the new rule to be given
retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should
be construed as is conducive to fairness and justice, and in harmony with the general spirit and
policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose.17 A
statute derives its vitality from the purpose for which it is approved. To construe it in a manner that
disregards or defeats such purpose is to nullify or destroy the law.18 In Cometa v. Court of
Appeals,19 this Court ruled that "the spirit rather than the letter of the statute determines its
construction; hence, a statute must be read according to its spirit or intent."20 While we may not read
into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for
its enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth, to give
effect to the lawmaker’s will."21

In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively
and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose
for which it was intended, namely, to give the State a period of two years from notice of the
provisional dismissal of criminal cases with the express consent of the accused. It would be a denial
of the State’s right to due process and a travesty of justice for the Court to apply the new rule
retroactively in the present case as the respondent insists, considering that the criminal cases were
provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on
December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and
oppressive consequences to the State and to the victims of crimes and their heirs.

Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express
consent of the accused in 1997. The prosecution had the right to revive the case within the
prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1,
2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal
case before then.

If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State
would be barred from reviving the case for failure to comply with the said time-bar, which was yet to
be approved by the Court three years after the provisional dismissal of the criminal case. In contrast,
if the same case was dismissed provisionally in December 2000, the State had the right to revive the
same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and
anticipate that three years after 1997, the Court would approve and amend the RRCP. The State
would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must
be stressed that the institution and prosecution of criminal cases are governed by existing rules and
not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal
existence before it was approved by the Court. The past cannot be erased by a capricious
retroactive application of the new rule.

In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases
provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus:

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year
period commenced to run on March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the
new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-
99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the
Court applied the new time-bar retroactively, the State would have only one year and three months
or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-
year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the
State would have two years from December 1, 2000 or until December 1, 2002 within which to revive
the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus
prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful
results in the administration of justice.

The period from April 1, 1999 to November 30, 199922 should be excluded in the computation of the
two-year period because the rule prescribing it was not yet in effect at the time and the State could
not be expected to comply with the time-bar. It cannot even be argued that the State waived its right
to revive the criminal cases against respondent or that it was negligent for not reviving them within
the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix
1a\^/phi 1.net

Frankfurter, in Griffin v. People, 351 US 12 (1956):

We should not indulge in the fiction that the law now announced has always been the law and,
therefore, that those who did not avail themselves of it waived their rights …

The two-year period fixed in the new rule is for the benefit of both the State and the accused. It
should not be emasculated and reduced by an inordinate retroactive application of the time-bar
therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship" to
the State and adversely affect the administration of justice in general and of criminal laws in
particular.23

Further quoting Justice Felix Frankfurter’s opinion in Griffin v. People,24 he said, "it is much more
conducive to law’s self-respect to recognize candidly the considerations that give prospective
content to a new pronouncement of law. That this is consonant with the spirit of our law and justified
by those considerations of reason which should dominate the law has been luminously expounded
by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court."

Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir,
Jr. could not have been expected to comply with the notice requirement under the new rule when it
yet had to exist:

99. Respondent submits that the records are still in the same state of inadequacy and incompletion.
This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999,
when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his
actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it
yet had to exist?25

Statutes regulating the procedure of the courts will be construed as applicable to actions pending
and undetermined at the time of their passage. In that sense and to that extent, procedural laws are
retroactive.26 Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long been dismissed by Judge
Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the
Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos.
Q-99-81679 and Q-99-81689 had long since been terminated. The two-year bar in the new rule
should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to
Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court
applied Section 8 of Rule 11027 of the RRCP retroactively, it did so only to cases still pending with this
Court and not to cases already terminated with finality.
The records show that after the requisite preliminary investigation conducted by the petitioners in
accordance with existing rules, eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112
were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent
cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in
the Constitution had been violated.28

The respondent’s plaint that he was being singled out by the prospective application of the new rule
simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for
the presidency of the Republic for the 2004 elections has no factual basis whatsoever.29 The bare
and irrefutable fact is that it was in this case where the issue of the retroactive/prospective
application of the new rule was first raised before the Court. The ruling of the Court in its April 1,
2003 Resolution and its ruling today would be the same, regardless of who the party or parties
involved are, whether a senator of the Republic or an ordinary citizen.

The respondent’s contention that the prospective application of the new rule would deny him due
process and would violate the equal protection of laws is barren of merit. It proceeds from an
erroneous assumption that the new rule was approved by the Court solely for his benefit, in
derogation of the right of the State to due process. The new rule was approved by the Court to
enhance the right of due process of both the State and the accused. The State is entitled to due
process in criminal cases as much as the accused.

Due process has never been and perhaps can never be precisely defined. It is not a technical
1a\^/phi 1.net

conception with a fixed content unrelated to time, place and circumstances. The phrase expresses
the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its
importance is lofty.30 In determining what fundamental fairness consists of in a particular situation,
relevant precedents must be considered and the interests that are at stake; private interests, as well
as the interests of the government must be assessed. In this case, in holding that the new rule has
prospective and not retroactive application, the Court took into consideration not only the interests of
the respondent but all other accused, whatever their station in life may be. The interest of the State
in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered.

The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of the
Revised Rules of Criminal Procedure

The respondent argues that the issue involved in the Court of Appeals is entirely different from the
issue involved in the present recourse; hence, any admissions he made in the court below are not
judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he
was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102
to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the
issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was
barred by Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the
appellate court are different from those in this Court.

The respondent posits that this Court erred in giving considerable weight to the admissions he made
in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only
be used against a party if such admissions are (a) made in the course of the proceedings in the
same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26,
Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he
filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679
to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at
the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause,
Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers
that his motion included the general prayer "for such other reliefs as may be equitable in the
premises." The respondent also points out that the public prosecutor agreed to the averments in his
motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.’s order
dismissing the cases.

The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or
verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial
court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to
enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice
requirements of Section 8. Echoing the May 28, 2002 ruling of this Court, the respondent contends
that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir,
Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of
probable cause.

The respondent avers that the requirement for notices to the offended parties under Section 8 is a
formal and not an essential requisite. In criminal cases, the offended party is the State and the role
of the private complainant is limited to the determination of the civil liability of the accused. According
to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant
to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the
offense is under the control and direction of the public prosecutor.

The contentions of the respondent have no merit.

First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil
Case No. 01-100933,31 the respondent32 sought injunctive relief from the RTC of Manila on his claim
that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the
petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP.33 When
the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA,
again invoking his right against double jeopardy, praying that:

13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the reasons
mentioned, there currently exists no complaint upon which a valid investigation can be had in light of
the clear provisions of Rule 110 which requires the existence of a "sworn written statement charging
a person with an offense" as basis for the commencement of a preliminary investigation under Rule
112.1awphi1.nét

For petitioner, the investigation covers exactly the same offenses over which he had been duly
arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to
57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in
jeopardy of being twice punished therefor (Article III, §21, Constitution).34

The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679
to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer
be charged and prosecuted anew for the same offense without violating his right against double
jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first
time Section 8 of Rule 117 of the RRCP:

(e) the new criminal cases for Murder filed by respondents against petitioner and the other accused
on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before
respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same
accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal
Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years
after such dismissal in accordance with the clear provisions of Section 8, Rule 117.35

Indeed, the CA granted the respondent’s petition based on Section 8, Rule 117 of the RRCP. In this
case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in
this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew
and the provisions of the Constitution on double jeopardy:

JUSTICE PANGANIBAN:

You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the
killing of the 11 in 1995?

ATTY. FORTUN:

That is my submission, Your Honor.

JUSTICE PANGANIBAN:

Let us see your reason for it?

ATTY. FORTUN:36

First, are you saying that double jeopardy applies or not?

JUSTICE PANGANIBAN:37

Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my
submission.

ATTY. FORTUN:38

No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the
doctrine of double jeopardy?

ATTY. FORTUN:

Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted)

JUSTICE PANGANIBAN:

That is right.

ATTY. FORTUN:

They are two different claims.

JUSTICE PANGANIBAN:

That is what I am trying to rule out so that we do not have to discuss it.
ATTY. FORTUN:

Very well, Your Honor.

JUSTICE PANGANIBAN:

You are not invoking double jeopardy?

ATTY. FORTUN:

As I mentioned we are saying that the effects of a permanent dismissal vest the effects
(interrupted)

JUSTICE PANGANIBAN:

No, I am not talking of the effects, I am asking about the application, you are not asking the
Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson?

ATTY. FORTUN:

Because the element of double jeopardy cannot apply 8, 117.

JUSTICE PANGANIBAN:

So, the answer is yes?

ATTY. FORTUN:

No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of
double jeopardy upon the accused who invokes it.

JUSTICE PANGANIBAN:

What you are saying is the effects, I am not asking about the effects, I will ask that later.

ATTY. FORTUN:

They are two different (interrupted)

JUSTICE PANGANIBAN:

Later, I am asking about doctrines. Since you are not invoking the doctrine of double
jeopardy you are resting your case win or lose, sink or sail on the application of 8,117?

ATTY. FORTUN:

On the constitutional right of the accused under Section 16 of Article 3 which is speedy
disposition of cases which implemented 8,817, that is our arguments in this bar.

JUSTICE PANGANIBAN:
Are you not resting on 8,117?

ATTY. FORTUN:

That and the constitutional provision, Your Honor.

JUSTICE PANGANIBAN:

So, you are resting on 8,117?

ATTY. FORTUN:

Not exclusive, Your Honor.

JUSTICE PANGANIBAN:

And the Constitution?

ATTY. FORTUN:

The Constitution which gave life to 8,117.

JUSTICE PANGANIBAN:

To speedy disposition?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE PANGANIBAN:

Can a Court, let us see your theory then – your theory rest on two provisions: first, the Rules
of Court 8,117 and Second, the Constitution on speedy disposition?

ATTY. FORTUN:

Yes, Your Honor.39

Second. The respondent’s answers to the questions of Madame Justice Josefina Salonga
during the hearing in the CA where he admitted, through counsel, that he gave no express
conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of
Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus:

JUSTICE SALONGA:

Do we get it from you that it is your stand that this is applicable to the case at bar?

ATTY. FORTUN:
It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr.
Lacson is covered by the rule on double jeopardy as well, because he had already been
arraigned before the Sandiganbayan prior to the case being remanded to the RTC.

JUSTICE SALONGA:

You are referring to those cases which were dismissed by the RTC of Quezon City.

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE SALONGA:

And it is your stand that the dismissal made by the Court was provisional in nature?

ATTY. FORTUN:

It was in that the accused did not ask for it. What they wanted at the onset was simply a
judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.]
upon the presentation by the parties of their witnesses, particularly those who had withdrawn
their affidavits, made one further conclusion that not only was this case lacking in probable
cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding
to trial.

JUSTICE SALONGA:

And it is expressly provided under Section 8 that a case shall not be provisionally dismissed
except [if] it is with the express conformity of the accused.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

And with notice to the offended party.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

Was there an express conformity on the part of the accused?

ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any order, or any statement which
would normally be required by the Court on pre-trial or on other matters, including other
provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me
that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the
accused to come forward, and the judge himself or herself explains the implications of a
provisional dismissal.40

The respondent, through counsel, even admitted that despite his plea for equitable relief in
his motion for a judicial determination of probable cause in the RTC, he did not agree to a
provisional dismissal of the cases. The respondent insisted that the only relief he prayed for
before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of
probable cause. He asserted that the judge did not even require him to agree to a provisional
dismissal of the cases:

JUSTICE ROSARIO:

You were present during the proceedings?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE ROSARIO:

You represented the petitioner in this case?

ATTY. FORTUN:

That is correct, Your Honor. And there was nothing of that sort which the good Judge
Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of
provisional dismissal or the matter of Mr. Lacson agreeing to the provisional
dismissal of the case.

JUSTICE GUERRERO:

Now, you filed a motion, the other accused then filed a motion for a judicial determination of
probable cause?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE GUERRERO:

Did you make any alternative prayer in your motion that if there is no probable cause what
should the Court do?

ATTY. FORTUN:

That the arrest warrants only be withheld. That was the only prayer that we asked. In
fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it
said: "Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause
 pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an
order be issued directing the prosecution to present private complainants and their witnesses
at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused
be withheld, or, if issued, recalled in the meantime until resolution of this incident."

JUSTICE GUERRERO:

There is no general prayer for any further relief?

ATTY. FORTUN:

There is but it simply says other equitable reliefs are prayed for.

JUSTICE GUERRERO:

Don’t you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your
prayer for just and equitable relief to dismiss the case because what would be the net effect
of a situation where there is no warrant of arrest being issued without dismissing the case?

ATTY. FORTUN:

Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is
we did not agree to the provisional dismissal, neither were we asked to sign any
assent to the provisional dismissal.

JUSTICE GUERRERO:

If you did not agree to the provisional dismissal, did you not file any motion for
reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed?

ATTY. FORTUN:

I did not, Your Honor, because I knew fully well at that time that my client had already
been arraigned, and the arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not
take any further step in addition to rocking the boat or clarifying the matter further
because it probably could prejudice the interest of my client.

JUSTICE GUERRERO:

Continue.41

In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent
declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without
jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was
assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of
probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for
the dismissal of the Informations, contrary to respondent OSG’s claim.42
Section 4, Rule 129 of the Revised Rules of Court reads:

Sec. 4. Judicial admissions. – An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.

A judicial admission is a formal statement made either by a party or his or her attorney, in the course
of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary
concession of fact by a party or a party’s attorney during such judicial proceedings, including
admissions in pleadings made by a party.43 It may occur at any point during the litigation process. An
admission in open court is a judicial admission.44 A judicial admission binds the client even if made by
his counsel.45 As declared by this Court:

... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who is, for
the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of
dispensing with proof of some fact, ... they bind the client, whether made during, or even after the
trial."46

When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-
81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not
give his express consent to the provisional dismissal of the said cases, he in fact admitted that one
of the essential requisites of Section 8, Rule 117 was absent.

The respondent’s contention that his admissions made in his pleadings and during the hearing in the
CA cannot be used in the present case as they were made in the course of a different proceeding
does not hold water. It should be borne in mind that the proceedings before the Court was by way of
an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as
such, the present recourse is but a mere continuation of the proceedings in the appellate court. This
is not a new trial, but a review of proceedings which commenced from the trial court, which later
passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and
such admissions so hold him in the proceedings before this Court. As categorically stated in
Habecker v. Clark Equipment Company:47

... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client
during a trial, are binding "for the purpose of the case ... including appeals."

While it may be true that the trial court may provisionally dismiss a criminal case if it finds no
probable cause, absent the express consent of the accused to such provisional dismissal, the latter
cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply
because the public prosecutor did not object to a motion of the accused for a judicial determination
of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even
a cursory reading of the respondent’s motion for a judicial determination of probable cause will show
that it contained no allegation that there was no probable cause for the issuance of a warrant for the
respondent’s arrest as a prayer for the dismissal of the cases. The respondent was only asking the
court to determine whether or not there was probable cause for the issuance of a warrant for his
arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it
that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the
court to grant such relief.48 A court cannot set itself in motion, nor has it power to decide questions
except as presented by the parties in their pleadings. Anything that is resolved or decided beyond
them is coram non judice and void.49
Third. There is no need for the Court to remand the instant case to the trial court to enable the
respondent to adduce post facto evidence that the requisite notices under Section 8 had been
complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from
the Sandiganbayan and the RTC50 and found no proof that the requisite notices were even served on
all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28,
2002 Resolution, "Judge Agnir, Jr. could not have complied with the mandate under Section 8
because said rule had yet to exist."51

One final matter. The records show that Criminal Cases Nos. 01-101102 to 01-101112 were
assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same
branch which dismissed Criminal Cases Nos. 99-81679 to 99-81689.52 In the April 1, 2003 Resolution
of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed to try and
decide Criminal Cases Nos. 01-101102 to 01-101112 with reasonable dispatch. The Court notes,
however, that in Administrative Order No. 104-96, it designated six branches of the RTC of Quezon
City53 as special courts, exclusively to try and decide heinous crimes under Rep. Act No. 7659. Since
the accused in the said cases are charged with murder, which under Rep. Act No. 7659, is classified
as a heinous crime, the above cases should be consolidated and re-raffled by the Executive Judge
of the RTC of Quezon City to a branch thereof designated as a special court, exclusively to try and
decide heinous crimes.

IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s Omnibus Motion and Motion
to Set for Oral Arguments are DENIED. The respondent’s Motion for Reconsideration and its
Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial Court of
Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to 01-101112
and to RE-RAFFLE the same with dispatch to one of the branches of the Regional Trial Court of
Quezon City designated as a special court, exclusively to try and decide heinous crimes.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez, Carpio-Morales, and

Azcuna, JJ., concur.

Puno, J., maintains his dissent.

Vitug, J., maintains his dissent and reiterate his opinion on the Court’s resolution of 28 May 2002.

Ynares-Santiago, J., see separate dissenting opinion.

Sandoval-Gutierrez, J., see dissenting opinion.

Carpio, J., no part.

Corona, J., on leave.

Tinga, J., no part.