Aquino Jr. v. Military Commission No.

2 Following the proclamation of martial law in the Philippines, petitioner was arrested on September 23, 1972, pursuant to General Order No. 2-A of the President for complicity in a conspiracy to seize political and state power in the country and to take over the Government. He was detained at Fort Bonifacio in Rizal province. On September 25, 1972, he sued for a writ of habeas corpus 1 in which he questioned the legality of the proclamation of martial law and his arrest and detention. This Court issued a writ of habeas corpus, returnable to it, and required respondents to file their respective answers, after which the case was heard. Thereafter, the parties submitted their memoranda. Petitioner's last Reply memorandum was dated November 30, 1972. On September 17, 1974, this Court dismissed the petition and upheld the validity of martial law and the arrest and detention of petitioner. 2 In the present case, petitioner challenges the jurisdiction of military commissions to try him, alone or together with others, for illegal possession of firearms, ammunition and explosives, for violation of the Anti-Subversion Act and for murder. The charges are contained in six (6) amended charge sheets 3 filed on August 14, 1973 with Military Commission No. 2. The original petition in this case was filed on August 23, 1973. It sought to restrain the respondent Military Commission from the proceeding with the hearing and trial of petitioner on August 27, 1973. Because of the urgency of the petition, this Court called a hearing on Sunday, August 26, on the question of whether with its membership of only nine (9) Justices, it had a quorum to take cognizance of the petition in view of the constitutional questions involved. At that hearing, this Court asked the parties to agree to seek from the Military Commission a postponement of petitioner's trial the following day. The purpose was to relieve the Court of the pressure of having to decide the question of quorum without adequate time to do so. When the proceedings before the Military Commission opened the following day, however, petitioner questioned the fairness of the trial and announced that he did not wish to participate in the proceedings even as he discharged both his defense counsel of choice and his military defense counsel. The proceedings were thereupon adjourned to another day. In the meantime, for the petitioner's assurance, a Special Committee, composed of a retired. Justice of the Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively by petitioner, the President of the Integrated Bar of the Philippines, the Secretary of Justice and the Secretary of National Defense, was created to reinvestigate the charges against petitioner. The Secretaries of Justice and National Defense designated their representatives but the petitioner refused to name his. The Chief Justice asked former Justice J.B.L. Reyes but the latter declined, as he also declined in his capacity as President of the IBP to designate a representative to the Committee. As a result, with only two of its members designed, the Special Committee has not been able to function. On September 4, 1973, a supplemental petition alleging the creation of the Special Committee and questioning the legality of its creation was filed. The Chief Justice of the Supreme Court and the Secretary of Justice were included as respondents. Subsequently, the Court resolved to require the respondents to file their answer and on August 21, 1974, within the extended period granted by the Court, respondents, with the exception of the Chief Justice, filed their answer to the supplemental petition. Thereafter, petitioner was required to file a reply and was granted additional time after the lapse of the original period, but instead of doing so, petitioner asked for the admission of a second supplemental petition challenging the continued enforcement of martial law in the Philippines, in the light of Presidential statements to the effect that with the coming into force of the new Constitution on January 17, 1973, martial law was "technically and legally" lifted. To this petition respondents answered. Thereafter, the parties submitted their respective memoranda in lieu of oral argument as per Resolution of this Court on January 14, 1975. 4 On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of Temporary Restraining Order Against Military Commission No. 2"; praying that said Commission be prohibited from proceeding with the perpetuation of testimony under its Order dated March 10, 1975, the same being illegal, until further orders from the Supreme Court.. On March 31, 1975, respondents filed their Comment to petitioner's aforementioned urgent motion, which motion and other related incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per Resolution of this Court on April 8, 1975. Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that "for lack of a necessary quorum", it could not act on petitioner's Urgent Motion for Issuance of temporary Restraining Order Against Military Commission No. 2, inasmuch as this case involved a constitutional question.. On April 7, 1975, petitioner filed a "Manifestation" stating, among others, that the "Urgent Motion did not and does not involve a constitutional question", for reasons stated therein. On April 12, 1975, respondents filed their "Reply to Petitioner's Manifestation", followed by Respondents' Manifestation filed on April 14, 1975, attaching thereto fourteen (14) sworn statements of witnesses whose testimonies are sought to be perpetuated.. On April 14, 1975, this Court also issued a restraining order against respondent Military Commission No. 2, restraining it from further proceeding with the perpetuation of testimony under its Order dated March 10, 1975 until the matter is heard and further orders are issued. When this case was called for hearing, petitioner's counsel presented to this Court a motion to withdraw the petition, as well as all other pending matters and/or incidents in connection therewith. Respondents' counsel interposed objection to the granting of the aforesaid motion to withdraw. After the hearing, this Court Resolved: "(a) to require the Solicitor General to furnish the Court as well as the petitioner and the latter's counsel, with copies of the transcript of all the stenographic notes taken at the hearing before the Military Commission No. 2 for the perpetuation of the testimony of the witnesses for the prosecution in various criminal cases filed against herein petitioner, within five (5) days from today; (b) to request the Solicitor General and the AFP Judge Advocate General to make the necessary arrangements for the petitioner to confer with his counsel on matters connected with the aforementioned motion to withdraw; (c) to allow counsel for the petitioner, if they so desire, to file a manifestation in amplication of the aforesaid motion to withdraw, within ten (10) days from the date they confer with the petitioner, and thereafter to allow the Solicitor General to file a counter-manifestation within ten (10) days from receipt of a copy thereof; and (d) to consider the case submitted for decision after submission by both parties of their respective pleadings on the motion to withdraw." Subsequently, the parties manifested their compliance. I

Acting on petitioner's motion to withdraw the petitions and motions in this case, and there being only three (3) Justices (Justices Fernando, Teehankee and Muoz Palma) who voted in favor of granting such withdrawal, whereas seven (7) Justices (Justices Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) voted for its denial, the said motion to withdraw is deemed denied (Section 11, Rule 56 of the Revised Rules of Court). The Chief Justice has inhibited himself, having been made respondent by petitioner in his Supplemental Petitions.5 The Justice who voted to deny the withdrawal are of the opinion that since all matters in issue in this case have already been submitted for resolution, and they are of paramount public interest, it is imperative that the questions raised by petitioner on the constitutionality and legality of proceedings against civilians in the military commissions, pursuant to pertinent General Orders, Presidential Decrees and Letters of Instruction, should be definitely resolved. In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as well as the supplemental petitions. 5* II MILITARY COMMISSIONS We have that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to hear the cases against civilians, including the petitioner. 1. The Court has previously declared that the proclamation of Martial Law (Proclamation No. 1081) on September 21, 1972, by the President of the Philippines is valid and constitutional and that its continuance is justified by the danger posed to the public safety. 6 2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 (September 27, 1972) the Court of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to them." In General Order No. 12 (September 30, 1972), the military tribunals were vested with jurisdiction "exclusive of the civil courts", among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. In order to ensure a more orderly administration of justice in the cases triable by the said military tribunals, Presidential Decree No. 39 was promulgated on November 7,1972, providing for the "Rules Governing the Creation, Composition, Jurisdiction, Procedure and Other Matters Relevant to Military Tribunals." These measures he has the authority to promulgate, since this Court recognized that the incumbent President, under paragraphs 1 and 2 of Section 3 of Article XVII of the new Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof....." 7 Pursuant to the aforesaid Section 3 [1] and [2] of Article XVII of the Constitution, General Orders No. 8, dated September 27, 1972 (authorizing the creation of military tribunals), No. 12, dated September 30, 1972 (defining the jurisdiction of military criminals and providing for the transfer from the civil courts to military tribunals of cases involving subversion, sedition, insurrection or rebellion, etc.), and No. 39, dated November 7, 1972, as amended (prescribing the procedures before military tribunals), are now "part of the law of the land." 8 3. Petitioner nevertheless insists that he being a civilian, his trial by a military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exigency. 9 "It need hardly be remarked that martial law lawfully declared," observed Winthrop, "creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable, at the discretion of the commander, (as governed by a consideration for the public interests and the due administration of justice) by military tribunals." 10 Indeed, it has been said that in time of overpowering necessity, "public danger warrants the substitution of executive process for judicial process." 11 According to Schwartz, "The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in court." 12 In any case, We cannot close Our eyes to the fact that the continued existence of these military tribunals and the exercise by them of jurisdiction over civilians during the period of martial law are within the contemplation and intendment of Section 3, paragraph 2 of Article XVII of the Constitution. These are tribunals of special and restricted jurisdiction created under the stress of an emergency and national security. This is the only logical way to construe said Section 3, paragraph 2 of Article XVII of the Constitution, in relation to General Order Nos. 8, 12 and 39, in the context of contemporary history and the circumstances attendant to the framing of the new charter. 4. When it has been established that martial law is in force, the responsibility for all acts done thereunder must be taken by the authorities administering it. 13 It is a serious responsibility which merits the cooperation of all in the collective desire for the restoration of civil order. In the case at bar, petitioner is charged with having conspired with certain military leaders of the communist rebellion to overthrow the government, furnishing them arms and other instruments to further the uprising. There is no question that the continuing communist rebellion was one of the grave threats to the Republic that brought about the martial law situation. Under General Order No. 12, jurisdiction over this offense has been vested exclusively upon military tribunals. It cannot be said that petitioner has been singled out for trial for this offense before the military commission. Pursuant to General Order No. 12, all "criminal cases involving subversion, sedition, insurrection or rebellion or those committed in furtherance of, on the occasion of incident to or in connection with the commission of said crimes" which were pending in the civil courts were ordered transferred to the military tribunals. This jurisdiction of the tribunal, therefore, operates equally on all persons in like circumstances.. 5. Neither are We impressed with petitioner's argument that only thru a judicial proceeding before the regular courts can his right to due process be preserved. The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily means a judicial proceeding in the regular courts. 14 The guarantee of due process, viewed in its procedural aspect, requires no particular form of procedure. It implies due notice to the individual of the proceedings, an opportunity to defend himself and "the problem of the propriety of the deprivations, under the circumstances presented, must be resolved in a manner consistent with essential fairness." 15 It means essentially a fair and impartial trial and reasonable opportunity for the preparation of defense. 16 Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures observance of the fundamental requisites of procedural due process, due notice, an essentially fair and impartial trial and reasonable opportunity for the preparation of the defense. 17 6. It is, however, asserted that petitioner's trial before the military commission will not be fair and impartial, as the President had already prejudged petitioner's cases and the military tribunal is a mere creation of the President, and "subject to his control and direction." We cannot, however, indulge in unjustified assumptions.

Prejudice cannot be presumed, especially if weighed against the great confidence and trust reposed by the people upon the President and the latter's legal obligation under his oath to "do justice to every man". Nor is it justifiable to conceive, much less presume, that the members of the military commission, the Chief of Staff of the Armed Forces of the Philippines, the Board of Review and the Secretary of National Defense, with their corresponding staff judge advocates, as reviewing authorities, through whom petitioner's hypothetical conviction would be reviewed before reaching the President, would all be insensitive to the great principles of justice and violate their respective obligations to act fairly and impartially in the premises. This assumption must be made because innocence, not wrongdoing, is to be presumed. The presumption of innocence includes that of good faith, fair dealing and honesty. This presumption is accorded to every official of the land in the performance of his public duty. There is no reason why such presumption cannot be accorded to the President of the Philippines upon whom the people during this period has confided powers and responsibilities which are of a very high and dedicate nature. The preservation of the rights guaranteed by the Constitution rests at bottom exactly where the defense of the nation rests: in the good sense and good will of the officials upon whom the Constitution has placed the responsibility of ensuring the safety of the nation in times of national peril. III ADMINISTRATIVE ORDER NO. 355 We also find that petitioner's claim that Administrative Order No. 355 actually "strips him of his right to due process" is negated by the basic purpose and the clear provisions of said Administrative Order. It was precisely because of petitioner's complaint that he was denied the opportunity to be heard in the preliminary investigation of his charges that the President created a Special Committee to reinvestigate the charges filed against him in the military commission. The Committee is to be composed of a retired Justice of the Supreme Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively by the accused, the President of the Integrated Bar, the Secretary of Justice and the Secretary of National Defense, all of whom, according to Administrative Order No. 355 "must be learned in the law, reputed for probity, integrity, impartiality, incorruptibility and fairness...." It is intended that the Committee should conduct the investigation with "utmost fairness, 'impartiality and objectivity' ensuring to the accused his constitutional right to due process, to determine whether "there is reasonable ground to believe that the offenses charged were in fact committed and the accused is probably guilty thereof." Petitioner, however, objected by challenging in his supplemental petition before this Court the validity of Administrative Order No, 355, on the pretense that by submitting to the jurisdiction of the Special Committee he would be waiving his right to cross-examination because Presidential Decree No. 77, which applies to the proceedings of the Special Committee, has done away with cross-examination in preliminary investigation. The infirmity of this contention is apparent from the fact that the committee "shall have all the powers vested by law in officials authorized to conduct preliminary investigations." We have held as implicit in the power of the investigating Fiscal or Judge in the discharge of his grave responsibility of ascertaining the existence of probable cause, is his right to cross-examine the witnesses since "cross-examination whether by the judge or by the prosecution supplies the gap by permitting an instant contrast of falsehoods and opposing half-truths, mixed with elements of truth, from which the examining judge or officer is better able to form a correct synthesis of the real facts." 18 In the case at bar, petitioner's representative in the Committee having been conferred with "all the powers" of officials authorized to conduct preliminary investigations, is, therefore, expressly authorized by Section 1[c] of Presidential Decree No. 77 to subpoena the complainant and his witnesses and "profound clarificatory questions". Viewed in the context of Our ruling in Abrera v.. Muoz, 19 this implies the authority of his representative in the Committee to cross-examine the witnesses of the prosecution, in order to reach an intelligent and correct conclusion on the existence of probable cause. IV PRELIMINARY INVESTIGATION Equally untenable is petitioner's contention that his constitutional right to due process has been impaired when the anti-subversion charges filed against him with the military commission were not investigated preliminarily in accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by Presidential Decree No. 39, as amended by Presidential Decree No. 77. It is asserted that under the aforesaid Presidential Decrees, he is precluded from cross-examining the prosecution witnesses and from being assisted by counsel. Contrary to petitioner's contention, Section 1[b] of Presidential Decree No. 77 specifically grants him the right to counsel, and Presidential Decree No. 328 amended Presidential Decree No. 39, precisely to secure the substantial rights of the accused by granting him the right to counsel during preliminary investigation. Under Section 5 of Republic Act No. 1700, the accused shall have the right "to cross-examine witnesses against him" and in case the offense is penalized by prision mayor to death, the preliminary investigation shall be conducted by the proper Court of First Instance. As to whether or not the denial to an accused of an opportunity to cross-examine the witnesses against him in the preliminary investigation constitutes an infringement of his right to due process, We have to advert to certain basic principles. The Constitution "does not require the holding of preliminary investigations. The right exists only, if and when created by statute." 20 It is "not an essential part of due process of law." 21 The absence thereof does not impair the validity of a criminal information or affect the jurisdiction of the court over the case. 22As a creation of the statute it can, therefore, be modified or amended by law. It is also evident that there is no curtailment of the constitutional right of an accused person when he is not given the opportunity to "cross-examine the witnesses presented against him in the preliminary investigation before his arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer concerned."23 Speaking for the Court, Justice Tuason, in Bustos v. Lucero,
24

discussed the matter extensively, thus: t.hqw

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C.J.S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution. As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is 'the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings' is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules. In Beazeil vs. Ohio, 269 U.S., 167, 70 Law. ed., 216, the United States Supreme Court said: t.hqw

'Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder Bull, 3 Dall 386, 390. 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring Missouri, 107 U.S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep. 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U.S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 US 343; 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U.S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202. 4 Am. Crime Rep 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson Missouri, 171 U.S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep. 922; or which changes the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U.S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570.' Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witness who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition. In rejecting the contention of the political offenders accused in the People's Court that their constitutional right to equal protection of the laws was impaired because they were denied preliminary examination and investigation, whereas the others who may be accused of the same crimes in the Court of First Instance shall be entitled thereto, this Court said: t.hqw (2) Section 22 in denying preliminary investigation to persons accused before the People's Court is justified by the conditions prevailing when the law was enacted. In view of the great number of prisoners then under detention and the length of time and amount of labor that would be consumed if so many prisoners were allowed the right to have preliminary investigation, considered with the necessity of disposing of these cases at the earliest possible dates in the interest of the public and of the accused themselves, it was not an unwise measure which dispensed with such investigation in such cases. Preliminary investigation, it must be remembered, is not a fundamental right guaranteed by the Constitution. For the rest, the constitutional prohibition against discrimination among defendants placed in the same situation and condition is not infringed.25 It was realized that the procedure prescribed in Republic Act No. 5180 granting the complainant and respondent in a preliminary investigation the right to crossexamine each other and their witnesses was "time consuming and not conducive to the expeditious administration of justice". Hence, it was found necessary in Presidential Decree No. 77 to simplify the procedure of preliminary investigation to conform to its summary character, by eliminating the cross-examination by the contending parties of their respective witnesses which in the past had made the proceeding the occasion for the full and exhaustive display of parties' evidence. The procedure prescribed in the aforecited decrees appears justified by the necessity of disposing cases during martial law, especially those affecting national security, at the earliest date. On the basis of the aforestated settled principles, the curtailment of the right of an accused to cross-examine the witnesses against him in the preliminary investigation does not impair any constitutional right. It may be relevant to note that recently in Litton, et al. v. Castillo, et al., 26 this Court denied for lack of merit a petition challenging the validity of Presidential Decree No. 77 issued on December 6, 1972, on the ground that aforesaid decree now "forms part of the law of the land." V PERPETUATION OF TESTIMONY Petitioner claims that the order of the Military Commission for the perpetuation of the testimony of prosecution witnesses is void because no copy of the petition was previously served on him. He asserts that, as a consequence, he was not given the opportunity to contest the propriety of the taking of the deposition of the witnesses. It must be noted that petitioner does not dispute respondents' claim that on March 14, 1975, he knew of the order allowing the taking of the deposition of prosecution witnesses on March 31, to continue through April 1 to 4, 1975. The provisions of Presidential Decree No. 328, dated October 31, 1973, for the conditional examination of prosecution witnesses before trial, is similar to the provisions of Section 7 of Rule 119 of the Revised Rules of Court. Presidential Decree No. 328 provides: t.hqw Where, upon proper application, it shall satisfactorily appear to the military tribunal before which a case is pending, that a witness for the prosecution or the defense is too sick or infirm to appear at the trial, or has to leave the Philippines with no definite date of returning thereto, or where delay in the taking of its testimony may result in the failure of justice or adversely affect national security, the witness may forthwith be examined and his deposition immediately taken, such examination to be by question and answer, in the presence of the other party, or even in the latter's absence provided thatreasonable notice to attend the examination or the taking of the deposition has been served upon him, and will be conducted in the same manner as an examination, at the trial, in which latter event the failure or refusal to attend the examination or the taking of the deposition shall be considered a waiver. (Emphasis supplied.) Section 7 of Rule 119 of the Revised Rules provides: t.hqw Deposition of witness for the prosecution. Where, however, it shall satisfactorily appear that the witness cannot procure bail, or is too sick or infirm to appear at the trial, as directed by the order of the court, or has to leave the Philippines with no definite date of returning thereto, he may forthwith be conditionally examined or his deposition immediately taken. Such examination or deposition must be by question and answer, in the presence of the defendant or after reasonable notice to attend the examination or the taking of the deposition has been served on him, and will be conducted in the same manner as an examination at the trial. Failure or refusal on the part of the defendant to attend the examination or the taking of the deposition after notice hereinbefore provided, shall be considered a waiver. The statement or deposition of the witness thus taken may be admitted in behalf of or against the defendant. His testimony taken, the witness must thereupon be discharged, if he has been detained. The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of Court, with the difference, among others, that the phrase "or after one hour notice" in the old Rules of Court has been changed to "or after reasonable notice" in the Revised Rules of Court.

In Elago v. People, 27 this Court, in rejecting the contention that no written motion was filed by the prosecuting attorney for the taking of the depositions and that less than one hour notice has been given the defendant, held that "the one-hour notice mentioned in Section 7, Rule 115, of the Rules of Court, was intended by law mainly to give the defendant time to attend the taking of a deposition and not to prepare for the taking thereof because in reality there is no need for preparation. It is not a trial where the defendant has to introduce his evidence. It is only taking down the statements of the witnesses for the prosecution with opportunity on the part of the defendant to cross-examine them." The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses of the prosecution and fixing the date and time thereof is the one that must be served on the accused within a reasonable time prior to that fixed for the examination of the witnesses so that the accused may be present and cross-examine the witness. On this point of the time given the defendant to attend the taking of the deposition, Professor Wigmore has the following to say: t.hqw The opportunity of cross-examination involves two elements: (1) Notice to the opponent that the deposition is to be taken at the time and place specified, and (2) A sufficient interval of time to prepare for examination and to reach the place. xxx xxx xxx (2) The requirements as to the interval of time are now everywhere regulated by statute .... ; the rulings in regard to the sufficiency of time are thus so dependent on the interpretation of the detailed prescriptions of the local statutes that it would be impracticable to examine them here. But whether or not the time allowed was supposedly insufficient or was precisely the time required by statute, the actual attendance of the party obviate any objection upon the ground of insufficiency, because then the party has actually had that opportunity of cross-examination ... for the sole sake of which the notice was required. 28 We, therefore, hold that the taking of the testimony or deposition was proper and valid. VI WAIVER OF PETITIONER'S PRESENCE There is conflict among the authorities as to whether an accused can waive his right to be present at his trial. Some courts have regarded the presence of the accused at his trial for felony as a jurisdictional requirement, which cannot be waived. 29 Many others do not accept this view. 30 In defense of the first view, it has been stated that the public has an interest in the life and liberty of an accused and that which the law considers essential in a trial cannot be waived by the accused. 31 In support of the latter view, it has been argued that the right is essentially for the benefit of the accused, 32 and that "since the accused, by pleading guilty, can waive any trial at all, he should be able to waive any mere privilege on the trial that is designated only to aid him in shielding himself from such result." 33 In this jurisdiction, this Court, in People v. Avancea, 34 traced the history of the constitutional right of the accused to be present at his trial from U.S. v. Karelsen 35 and U.S. v. Bello 36 Diaz v. United States 37 and People v. Francisco. 38 In the first two cases, it was ruled that one whose life or liberty is involved in the prosecution for felony must be personally present at every stage of the trial when his substantive rights may be affected by the proceedings and that it is not within his power to waive the right to be personally present. In Diaz v. United Statesand People v. Francisco, this rule was modified. Upon the authority of the Diaz and Francisco cases, the Court laid down as the law in this jurisdiction that: (1) in cases of felony, the accused has the right to be present at every stage of the trial, inclusive of the arraignment and pronouncement of the judgment; (2) where the offense is capitalthe right of the accused to be present at every stage of the trial is indispensable and cannot be waived; (3) even in felonies not capital, if the accused is in custody, his right to be present at every stage of the trial is likewise indispensable and cannot be waived; (4) where the offense is not capital and the accused is not in custody his presence is indispensable only: (a) at the arraignment; (b) at the time the plea is taken, if it be one of guilt; and (c) at the pronouncement of judgment. The Court looted the rationale of Diaz v. United States as basis of its ruling, thus: t.hqw ... the court was called upon to pass on the question whether the provision in section 5 of the Philippine Civil Government Act, securing to the accused in all criminal prosecutions 'the right to be heard by himself and counsel,' makes his presence indispensable at every stage of the trial, or invests him with a right which he is always free to assert, but which he also may waive by his voluntary act. After observing that an identical or similar provision is found in the constitutions of the several states of the American Union, and that its substantial equivalent is embodied in the 6th Amendment to the Constitution of the United States; that it is the right which these constitutional provisions secure to persons accused of crime in that country that was carried here by the congressional enactment; and that, therefore, according to a familiar rule, the prevailing course of decision there may and should be accepted as determinative of the nature and measure of the right here, Justice Van Devanter speaking for the court, said: 'As the offense in this instance was a felony, we may put out of view the decisions dealing with this right in cases of misdemeanor. In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control; and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the lawful penalty that would follow conviction. But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.' 39 In Avancea, the issue was whether the defendant charged with an offense which is not capital had impliedly waived his right to be present at his trial, because of his failure to appear in court at the trial of his case. Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the absence of the accused. It is now provided that "after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 40 On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia, the issue has been raised whether or not petitioner could waive his right to be present at the perpetuation of testimony proceedings before respondent Commission..

As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. The personal presence of the accused from the beginning to the end of a trial for felony, involving his life and liberty, has been considered necessary and vital to the proper conduct of his defense. The "trend of modern authority is in favor of the doctrine that a party in a criminal case may waive irregularities and rights, whether constitutional or statutory, very much the same as in a civil case." 41 There are, for instance, certain rights secured to the individual by the fundamental charter which may be the subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed of the nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to face, as well as the right against unreasonable searches and seizures, are rights guaranteed by the Constitution. They are rights necessary either because of the requirements of due process to ensure a fair and impartial trial, or of the need of protecting the individual from the exercise of arbitrary power. And yet, there is no question that all of these rights may be waived. 42 Considering the aforecited provisions of the Constitution and the absence of any law specifically requiring his presence at all stages of his trial, there appears, therefore, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right, like the others aforestated, was conferred upon him for his protection and benefit. It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court (Deposition of witness for the prosecution) the "Failure or refusal on the part of the defendant to attend the examination or the taking of the deposition after notice hereinbefore provided, shall be considered a waiver" (Emphasis supplied.) Similarly, Presidential Decree No. 328 expressly provides that " ... the failure or refusal to attend the examination or the taking of the deposition shall be considered a waiver." (Emphasis supplied). It is for the foregoing reasons that the writer of this opinion voted with the six (6) Justices who ruled on the full right of petitioner to waive his presence at said proceedings.. Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and Aquino) are of the view that petitioner may waive his right to be present at all stages of the proceedings while five (5) Justices (Castro, Makasiar, Esguerra, Concepcion Jr. and Martin) are in agreement that he may so waive such right, except when he is to be identified, the result is that the respondent Commission's Order requiring his presence at all times during the proceedings before it should be modified, in the sense that petitioner's presence shall be required only in the instance just indicated. The ruling in People v. Avancea 43 is thus pro tanto modified. Finally, it is insisted that even if said orders and decrees were valid as martial law measures, they have ceased to be so upon the termination of the emergency. In Aquino, et al. v. Enrile, et al., supra, We adverted to the fact that the communist rebellion which impelled the proclamation of martial law has not abated. In the absence of any official proclamation by the President of the cessation of the public emergency, We have no basis to conclude that the rebellion and communist subversion which compelled the declaration of martial law, no longer pose a danger to public safety. It is important to note here that an accused being tried before a military tribunal enjoys the specific constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself and counsel, 44 to be informed of the nature and cause of the accusation, 45 to meet the witnesses face to face, to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf, 46 and to be exempt from being a witness against himself. As in trial before civil courts, the presumption of innocence can only be overcome by evidence beyond reasonable doubt of the guilt of the accused. 47 These tribunals, in general, are "bound to observe the fundamental rules of law and principles of justice observed and expounded by the civil judicature." 48Section 11 of the Manual for Courts-Martial specifically provides that the "rules of evidence generally recognized in the trial of criminal cases in the courts of the Philippines shall be applied by courtsmartial." 49 This is applicable to trials in the military commission . 50 There is, therefore, no justification for petitioner's contention that such military tribunals are concerned primarily with the conviction of an accused and that proceedings therein involve the complete destruction and abolition of petitioner's constitutional rights. This is not, however, to preclude the President from considering the advisability of the transfer of these cases to the civil courts, as he has previously announced. IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions for prohibition with preliminary injunction and setting aside the temporary restraining order issued on April 8, 1975, with costs against petitioner. U.S. v. Ong Siu Hong We find no reason to disturb the findings of the trial court, particularly relative to the credibility of the witnesses for the prosecution, members of the secret service. On point only requires consideration. Counsel for appellant raises the constitutional question that the accused was compelled to be a witness against himself. The contention is that this was the result of forcing the accused to discharge the morphine from his mouth. No case exactly in point can be found. But, by analogy, the decision of the Supreme Court of the Philippine Islands in U. S. vs. Tan Tan ([1912] 23 Phil.. 145), following leading authorities, and the persuasive decisions of other courts of last resort, are conclusive. To force a prohibited drug from the person of an accused is along the same line as requiring him to exhibit himself before the court; or putting in evidence papers and other articles taken from the room of an accused in his absence; or, as in the Tan Teng case, taking a substance from the body of the accused to be used in proving his guilt. It would be a forced construction of the paragraph of the Philippine Bill of Rights in question to hold that any article, substance, or thing taken from a person accused of crime could not be given in evidence. The main purpose of this constitutional provision is to prohibit testimonial compulsion by oral examination in order to extort unwilling confessions from prisoners implicating them in the commission of a crime. (Harris vs. Coats [1885], 75 Ga., 415.) Following the practice of this court in cases of this character, the judgment of the lower court is modified by imposing the minimum penalty provided by law, i. e., three months imprisonment and a fine of P300 or, in case of insolvency, to suffer subsidiary imprisonment, with costs. (U. S. vs. Lim Sing, [1912], 23 Phil. 424; U. S. vs. Sy Liongco, [1915], 33 Phil., 563.) So ordered. People v. Otadora In August, 1947 in the Court of First Instance of Leyte, Antonio Otadora and Hilaria Carreon were charged with the murder of the spouses Leon Castro and Apolonia Carreon. Otadora pleaded guilty, and was sentenced to life imprisonment. Denying her guilt, Hilaria Carreon was tried, found guilty and sentenced to death and other accessory penalties. The court declared that with promises of monetary reward, she had induced Antonio Otadora to do the killing. Motive for the instigation was the grudge she bore against the deceased spouse on account of disputes with them over inherited property. This woman convict appealed in due time. Her attorney filed here a voluminous brief wherein he attempted painstakingly to break down the position of the prosecution and to expound the theory that Antonio Otadora is the only person responsible for the slaying, and that Hilaria Carreon is just "the unfortunate victim of a vicious frame-up concocted against her." She necessarily had to offer a satisfactory explanation for the conduct of Otadora, who has pleaded guilty and has declared for the prosecution against her, explaining the circumstances under which she had promised to him compensation for liquidating the unfortunate couple. There is no question about these facts:

Early in the morning of June 16, 1947, Leon Castro and his wife Apolonia Carreon were shot dead in their house in the City of Ormoc, Leyte. In the afternoon of June 21, 1947, Antonio Otadora was arrested in Ormoc City while preparing to escape to Camotes Island, Cebu. The next day he confessed in an extra-judicial statement (Exhibit 1) wherein he implicated the herein accused and appellant Hilaria Carreon asserting that, with offers of pecuniary gain, the latter had induced him to commit the crime. On June 25, 1947, a complaint for double murder was filed against both defendants in the justice of the peace court of Ormoc, Leyte. Preliminary investigation was waived and the record was forwarded to the court of first instance, where on September 3, 1947, Otadora pleaded guilty with the assistance of counsel. Hilaria Carreon pleaded not guilty, and asked for a separate trial, which was immediately held, with Otadora as the first witness for the prosecution. The evidence presented on behalf of the People proved that: (1) Apolonia Carreon was the sister of Hilaria. Due to a family quarrel, Apolonia filed in August, 1946, a criminal complaint for serious threats against Hilaria and her husband Francisco Galos (Exhibit P-1). These were arrested and had to file a bond. The case was later withdrawn by Apolonia upon the advice of friendly mediators. In December of 1946, Leon Castro as guardian ad litem of some minors surnamed Carreon filed a civil complaint for partition of real property and damages against Hilaria Carreon. This suit was set for hearing on June 24, 1947. (2) Antonio Otadora met Hilaria Carreon sometime in April, 1947, through Amando Garbo. Thereafter they converse on several occasions. In the early part of May, 1947, she saw him going to barrio Matica-a and then she told him that if he would liquidate the spouses Leon Castro and Apolonia Carreon she would give him P3,000. He did not agree. In the last week of May he was invited to Hilaria's house. The proposal was renewed, better conditions being offered. (1/3 of P10,000 plus carabaos, plus P300.) He must have demurred alleging that he had no adequate weapon, Hilaria is reported to have engaged to supply it. (3) Around the first week of June, 1947, Hilaria Carreon sent for Otadora. She gave him the revolver Exhibit A; but the revolver turned out to be defective so he handed it back to Hilaria. The latter ordered it repaired by Benigno Baltonado who had previously sold it to her. Three days later, Baltonado returned the gun in good condition with more than ten bullets, and appellant in turn delivered the weapon to Otadora who was then in her house, advising him at the same time to carry out soon their plan so that Leon Castro may not attend the hearing of the civil case. Appellant also gave Otadora the bolo Exhibit B, a pair of trousers of her husband Francisco Galos (Exhibit C), a hat Exhibit D and a flashlight Exhibit E. (4) Otadora set out to do his part in the morning of June 16; but Apolonia was not in her residence. He reported to appellant the next day and the latter urged him to execute it that day, giving him P6.50 for transportation. That night, at about one o'clock, Antonio climbed up the house of the Castros, passing through the window. He saw them sleeping side by side. He opened the door to the kitchen to prepare his exit. Returning to the place where the couple lay, he stumbled on Leon Castro, who exclaimed, "who are you?". Otadora replied, "I am" "I don't have any purpose except you, get up and fight." As Castro was about to stand up, Otadora fired. Apolonia was awakened, and embraced her husband who meantime had fallen. Otadora shot her too. The couple died immediately of shock and hemorrhage. (5) After committing the murders, Otadora returned to barrio Matica-a intending to go to Hilaria's home; but as he was nearing the kitchen, Francisco Galos signalled him to go away. (He was seen, crossing the cornfield near Hilaria Carreon's house by Juanita Garbo, who so testified in court.) Otadora went to his home in Sitio Hubas. On June 20, at a dance, he received word from Hilaria through her husband Galos, that he was wanted by the police, and that he should decamp. the next morning he passed by the residence of Hilaria, and the latter gave him P5, plus two packages of cigarettes, adding that he should not attempt to visit her further, because she was being watched. The next day, she again sent him P45 through Amando Garbo, who delivered the money at the back of the house of Menes Tahur in Canangca-an. After receiving the money, Otadora prepared to escape to Camotes Islands. But he was caught before he could run away. The above statement of principal facts is a condensation of the testimonies of Antonio Otadora, Benigno Baltonado, Amando Garbo, Alejandro Bensig, Macario Bensig, Juanita Garbo, and others. It is substantially in accord with the findings of His Honor, the trial judge. Of course it is founded mainly upon the declarations of Antonio Otadora that necessarily are persuasive inasmuch as he himself admits his direct participation and his assertions are fully corroborated by a series of circumstances competently established. Hilaria denied connection with the assassination. And naturally the defense exerted effort to discredit Otadora's version, by submitting the following theory: Antonio Otadora planned a revenge upon Castro because the latter as a spy caused the death of his father Sergio Otadora at the hands of the Japanese. He, however, found himself in the necessity of eliminating Apolonia Carreon because the latter was a witness to his deed. On the other hand, Antonio Otadora (and the other witnesses who are his relatives) also desire to take revenge upon Hilaria Carreon because the latter, during the Japanese occupation, saved Leon Castro from death at the hands of the guerrillas. The defense says that to those who had been prejudiced by the espionage activities of Leon Castro, Hilaria Carreon appears to be just as responsible as Leon Castro. The theory can not be lawfully accepted. Firstly, Otadora denies that his father died at the hands of the Japanese. Secondly, the alleged "saving" of Leon Castro was not sufficiently established. Loreto Micabel, the superior officer of the guerrillas, who ordered the release of Leon Castro, did not mention Hilaria as one of those who interceded for the prisoner (p. 286, stenographic notes). Thirdly, nobody in his right senses holds Pedro criminally responsible for the crime of Juan simply because a few days before the crime Pedro saved Juan from drowning 99SQzMdr. On the other hand, the grudge which Otadora supposedly held against Castro, readily explains why for a consideration he undertook to kill. It is likewise probable that knowing such desire for vengeance, Hilaria selected him to carry out the dangerous and delicate job. And if it is true that Hilaria saved Leon Castro during the Japanese occupation, it is very likely that she hated her "ungrateful" brother-in-law and sister, (who on two subsequent occasions brought her to court), so much that she hired Otadora to eliminate them. The assertions of Otadora are decisively ratified by Benigno Baltonado who swore that it was Hilaria who had purchased the murderous gun from him for P55, and who ordered him to fix it; that on the third day he returned the gun to her in her home with rounds of ammunition; and that Otadora was there on that occasion. The remarks and arguments of counsel on pages 87-92 of his brief do not, in our opinion, destroy Baltonado's credibility. Then there is the witness Amando Garbo, whose brother Esteban is married to the sister of Hilaria, and whose sister married a younger brother of Hilaria. Amando Garbo declared that he was on friendly terms with Hilaria, taking care of her fighting cock; that in December, 1946 in the fiesta of Palompon, she tried to persuade him to kill the spouses Castro; that he declined; that she asked him to look for another for another whom she could hire; that he introduced Hilaria to Antonio Otadora; that it was he who, at the request of Hilaria, secretly delivered P45 in paper bills of different denominations to Antonio Otadora after the crime was committed. And Juanita Garbo, niece of Hilaria Carreon, confirmed the various meetings of Otadora and Hilaria in the latter's house. And there is the witness Macario Bensig who swore that in May, 1947, at Tabogocon, Ormoc City, during the wedding of his brother Benito with Luisa Pilapil in May, 1947, Hilaria Carreon told him that if he would kill Leon Castro and Apolonia Carreon he would be given money as a reward.

Again there is the witness Sgt. Tomada who said that when the accused Hilaria Carreon was arrested on June 25, 1947, she was committed to his custody because there was no adequate place in the municipal jail for her; that she requested him confidentially to get a lock of hair of Antonio Otadora explaining to him that if that hair is burned Otadora would become insane, and therefore would not be able to declare against her. Further corroboration of appellant's criminal connection with the bloody affair is the undisputed possession by Otadora of the pants of Francisco Galos (Exhibit C) and his hat Exhibit D. It appears that when Francisco Galos denied ownership of the pants he was ordered to put it on; and the judge found that it fitted him perfectly. This incident gave the defense opportunity for extended argument that the constitutional protection against self-incrimination had been erroneously disregarded. But we discover in the record no timely objection upon that specific ground. And it is to be doubted whether the accused could benefit from the error, if any. Furthermore, and this is conclusive, "measuring or photographing the party is not within the privilege" (against self-incrimination). "Nor is the removal or replacement of his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing things to be done." (Wigmore on Evidence, Vol. 4, p. 878, quoted in Beltran vs. Samson and Jose, 53 Phil. 570, 576). In conclusion, we are fully satisfied from a reading of the whole expediente that the appellant induced Antonio Otadora to commit the double murder, and furnished him with the deadly firearm. She is just as guilty as if she herself had perpetrated the murderous assaults. The slaying is qualified by the circumstance of treachery. It is aggravated by evident premeditation; but for lack of sufficient votes the appellant is sentenced to suffer life imprisonment for each murder, (not exceeding 40 years, art. 70, Rev. Penal Code), and to indemnify the heirs of the Castros in the sum of P4,000. The appealed judgment will be thus modified. pascual jr. v. board of medical examiners The broad, all-embracing sweep of the self-incrimination clause,1 whenever appropriately invoked, has been accorded due recognition by this Court ever since the adoption of the Constitution.2 Bermudez v. Castillo,3decided in 1937, was quite categorical. As we there stated: "This Court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the right of the individual intended to be served." 4 Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan,5where it was held that a respondent in an administrative proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal. Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case7 for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority. Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of prohibition. On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a bond in the amount of P500.00. The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling for an incriminating answer is asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of discretion. There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board, which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the right against self-incrimination cannot be availed of in an administrative hearing. A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee. 1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act,9the complainant requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand." It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a administrative charge of unexplained wealth, with the AntiGraft Act authorizing the forfeiture of whatever property a public officer or employee may acquire, manifestly out proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his license as a medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession. 2. The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional guarantee against selfincrimination should be limited to allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the language of another American decision, 11 is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted.lawphi1.et The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." 12 Only last year, in Chavez v. Court of Appeals, 13 speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free genuine will." Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens." 14 It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." 16 In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to take the witness stand without his consent. WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs. Galman v. Pamaran On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life. To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4 UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice. Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY. In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases" 7 contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution. 10 On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial. 12 All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion.

On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13 Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision. The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board. It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against self- incrimination.17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination. The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws. The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation. 19 Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied) The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein. Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them. Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads: ... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied) Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights. The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person. 25

It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand. All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26 Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that: the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self- incrimination. To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as follows: That no person shall be ... compelled in a criminal case to be a witness against himself. As now worded, Section 20 of Article IV reads: No person shall be compelled to be a witness against himself. The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).
30

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties. Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied) it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them. It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against self-incrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Emphasis supplied) The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law. 35 Apparent conflict between two clauses should be harmonized. 36 But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus: SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in direct contempt by the Board. ... Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness. With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote: I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being. (Emphasis supplied) Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society. IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs.

SO ORDERED. Chavez v. CA The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below the third amended information upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias"Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2 Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described. Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1wph1.t On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City. The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:. COURT: The parties may proceed. FISCAL GRECIA: Our first witness is Roger Chavez [one of the accused]. ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object. COURT: On what ground, counsel? . ATTY. CARBON: On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA: I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness. ATTY. CARBON: As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx xxx xxx

COURT: [after the recess]

Are the parties ready? . FISCAL: We are ready to call on our first witness, Roger Chavez. ATTY. CARBON: As per understanding, the proceeding was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire. COURT: What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witnessstand. ATTY. CARBON: I submit. xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: . MAY IT PLEASE THE COURT: This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT: The court will give counsel time within which to prepare his cross-examination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT: That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness. The court will not defer the taking of the direct examination of the witness. Call the witness to the witness stand. EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand. ATTY. IBASCO: I submit. COURT: The Fiscal may proceed.3 And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto. As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer. 4 Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan. From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00. To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez. At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign. After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded. The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued: It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez'accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7 The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8 On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No

person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." . It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16 It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17 Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23 And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:. What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness stand. Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction.
25

While a defendant's knowledge of the facts

The judge's words heretofore quoted "But surely counsel could not object to have the accused called on the witness stand" wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.

3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27 The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1wph1.t There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, andintelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41 Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... "42 6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted. Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q5311, entitled"People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered. Valencia v. Sandiganbayan On April 8, 1997, petitioners Rodolfo G. Valencia, Pedrito Reyes, Remedios Marasigan, Bayani Anastacio, Rumulado Bawasanta, Jose Enriquez, Nelson Gabutero, Jose Genilo, Jr., Jose Leynes and Alfonso Umali were charged with Violation of Section 3 (e) in relation to Section 3 (g) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, in an Information which reads:

That on or about January 12, 1994 or sometime prior or subsequent thereto, in Calapan, Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, accused Rodolfo G. Valencia, then Provincial Governor of Oriental Mindoro, Pedrito A. Reyes, then Vice-Governor and Presiding officer of the Sangguniang Panlalawigan of Oriental Mindoro, Bayani Anastacio, Romualdo J. Bawasanta, Emmanuel B. Buenaventura, Cesareo M. Cueto, Violeta D. Dakis, Jose A. Enriquez, Nelson B. Cabutero, Jose G. Genilo, Jr., Jose C. Leynes, Dante A. Manao, Remedios E. Marasigan, all members of the Sangguniang Panlalawigan of Oriental Mindoro, and Alfonso V. Umali, Jr., then Provincial Administrator, all of whom are public officials of the provincial government of Oriental Mindoro, while in the performance of their official and/or administrative functions, and acting in evident bad faith and manifest partiality, conspiring and confederating with private accused Engr. Alfredo M. Atienza, and mutually helping one another , did then and there willfully, unlawfully and criminally give said accused Alfredo M. Atienza unwarranted benefit, privilege and advantage by entering into a grossly disadvantageous contract of loan, whereby the provincial funds of Oriental Mindoro in the sum of P2,500,000.00 was given to Alfredo M. Atienza to finance the cost of repair, operation and maintenance of his vessel, thereby causing the provincial government of Oriental Mindoro damage and undue injury. CONTRARY TO LAW.[1 The Information was filed with the Sandiganbayan and docketed as Criminal Case No. 23624. On April 11, 1997, petitioners filed a Motion Seeking an Order to Allow Accused to File with the Ombudsman Motion for Reconsideration/Reinvestigation and to Defer Issuance of Warrant of Arrest.[2 This was followed by a Motion to Quash filed by petitioner Valencia on April 14, 1997.[3 The prosecution manifested that it had no objection to a reinvestigation of the case.Hence, on October 23, 1997, the Sandiganbayan granted petitioners motion for reinvestigation and directed the Office of the Special Prosecutor to conduct a reinvestigation.[4 On March 23, 1998, the Office of the Special Prosecutor/Ombudsman issued a Joint Resolution wherein Ombudsman Aniano A. Desierto and Prosecution Bureau Director Victorio U. Tabanguil approved the recommendation of Special Prosecution Officer II Manuel A. Corpuz that the motion for reinvestigation be denied but that the complaint as against Emmanuel B. Buenaventura, Violeta A. Daquis and Damte A. Manzo be dismissed for insufficiency of evidence.However, Deputy Special Prosecutor Robert E. Kallos and Special Prosecutor Leonardo P. Tamayo recommended the dismissal of the complaint against all accused on the ground that their liability is civil in nature.[5 Accordingly, the prosecution filed an Amended Information.[6 Petitioners filed with the Sandibangayan a Motion for Leave to File Motion for Reconsideration of the Joint Resolution of the Office of the Special Prosecutor/Ombudsman,[7 which was denied in the first assailed Resolution dated June 23, 1999.[8 In the meantime, petitioners learned that in the administrative case against them docketed as OMB-ADM-1-96-0316, which involved the same subject matter as the criminal case, the Ombudsman dismissed the complaint against them after finding that the contract of loan was entered into in pursuance of the police power of the local chief executive.[9 Invoking this Resolution, petitioners filed with the Sandiganbayan a Motion for Reconsideration of the Order dated June 23, 1999 and/or Motion to Resolve Motion to Quash Information.[10 In the second assailed Resolution dated September 27, 1999, the Sandiganbayan denied the Motion.[11 Hence, this petition for certiorari under Rule 65 of the Rules of Court, based on the following grounds: Respondent Sandiganbayan committed grave abuse of discretion amounting to lack of jurisdiction in not dismissing the information or in not granting the Motion to Quash information despite the fact that: a)Respondent ombudsman had already dismissed the administrative case against the petitioners regarding the same subject matter of the criminal case against the petitioners; b)The facts alleged in the information have already become moot and academic and no longer constitute an offense; c)No satisfactory reason was given by the respondent Ombudsman in delaying inordinately (close to three [3] years) the filing of the information against the petitioners. Similarly, respondent Sandiganbayan committed grave abuse of discretion amounting to lack of jurisdiction in the Resolution dated September 27, 1999 in holding that the dismissal of the administrative case against all the petitioners is not determinative of the outcome of the criminal case despite the facts following: a)The subject matter in both criminal and administrative cases against the same petitioners are one and the same; b)The degree of proof in criminal case is proof beyond reasonable doubt.Whereas, in administrative case the proof required is only substantial evidence; and c)Two of the reviewing prosecutors, namely: Deputy Prosecutor Roberto Kallos and Special Prosecutor Leonardo Tamayo held in the Joint Resolution dated March 23, 1999 that the criminal case against the petitioners should be dismissed, and they both concurred with the findings of GIO I Medwin Dizon, Dir. Angel Mayoralgo, Jr., and Hon. Assistant Ombudsman Abelardo Aportadera, Jr., in their Resolution dated October 8, 1996, which recommended the dismissal of the case as they found that the contract of loan entered into by the petitioners with a certain Alfredo Atienza was in pursuance of the General Welfare Clause of Section 16 of the Local Government Code.[12 In a Minute Resolution dated January 31, 2000, the petition was dismissed for failure to show grave abuse of discretion on the part of the Sandiganbayan.[13 Petitioners filed a Motion for Reconsideration[14 as well as a Supplemental thereto.[15 The respondents were required to comment on the Motion for Reconsideration and the Supplement.[16 The prosecution filed a Comment on the petition for certiorari.[17 Thereafter, petitioners filed their Reply.[18 In the meantime, on May 29, 2000, a Temporary Restraining Order was issued enjoining respondents from further proceeding with the pre-trial and trial in Criminal Case No. 23624 entitled People of the Philippines vs. Rodolfo G. Valencia, et al., scheduled [on] May 22, 23, 24 and 25, 2000 and from acting on the motion to suspend petitionerspendente lite.[19

On November 27, 2000, petitioners Motion for Reconsideration was granted and the petition was reinstated.[20 The petition lacks merit. The grounds on which a complaint or information may be quashed are: (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.[21 Save where the Rules expressly permit the investigation of facts alleged in a motion to quash, the general rule is that in the hearing of such motion only such facts as are alleged in the information, and those admitted by the prosecutor, should be taken into account in the resolution thereof.Matters of defense can not be produced during the hearing of such motions, except where the rules expressly permit, such as extinction of criminal liability, prescription and former jeopardy.[22Otherwise put, facts which constitute the defense of the accused against the charge under the information must be proved by them during trial.Such facts or circumstances do not constitute proper grounds for a motion to quash the information on the ground that the material averments do not constitute the offense.[23 As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted.The informations need only state the ultimate facts; the reasons therefor could be proved during the trial.[24 The fundamental test in reflecting on the viability of a motion to quash under this particular ground is whether or not the facts asseverated, if hypothetically admitted, would establish the essential elements of the crime defined in the law.In this examination, matters aliunde are not considered.[25 However, inquiry into facts outside the information may be allowed where the prosecution does not object to the presentation thereof.[26 In the early case of People v. Navarro,[27 we held: Prima facie, the facts charged are those described in the complaint, but they may be amplified or qualified by others appearing to be additional circumstances, upon admissions made by the peoples representative, which admissions could anyway be submitted by him as amendments to the same information.It would seem to be pure technicality to hold that in the consideration of the motion the parties and the judge were precluded from considering facts which the fiscal admitted to be true, simply because they were not described in the complaint.Of course, it may be added that upon similar motions the court and the fiscal are not required to go beyond the averments of the information, nor is the latter to be inveigled into a premature and risky revelation of his evidence.But we see no reason to prohibit the fiscal from making, in all candor, admissions of undeniable facts, because the principle can never be sufficiently reiterated that such officials role is to see that justice is done: not that all accused are convicted, but that the guilty are justly punished.Less reason can there be to prohibit the court from considering those admissions, and deciding accordingly, in the interest of a speedy administration of justice. It should be stressed, however, that for a case to fall under the exception, it is essential that there be no objection from the prosecution.Thus, the above rule does not apply where the prosecution objected to the presentation of extraneous facts and even opposed the motion to quash.[28 In the case at bar, petitioners are charged with violation of Section 3 (e), in relation to 3 (g), of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act.The pertinent provisions read: 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: xxx xxxxxx. (e)Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.This provision shall apply to officers and employees of officers or government corporations charged with the grant of licenses or permits or other concessions. xxx xxxxxx. (g)Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. xxx xxxxxx.

The elements of the crime of violation of Section 3 (e) are the following: 1.The accused is a public officer discharging administrative, judicial or official functions; 2.He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3.His action has caused undue injury to any party, including the Government, or has given any party any unwarranted benefit, advantage or preference in the discharge of his functions.[29 On the other hand, the elements of the crime of violation of Section 3 (g) are: 1.The offender is a public officer; 2.He enters into a contract or transaction on behalf of the government; and 3.The contract or transaction is grossly and manifestly disadvantageous to the government.[30 A careful scrutiny of the Information shows that all the above elements are averred therein.It sufficiently alleges that petitioners are public officials discharging official or administrative functions who, in evident bad faith and with manifest partiality, entered into a grossly disadvantageous contract on behalf of the government with a private person which gives the latter unwarranted benefit and advantage. Petitioners invoke the earlier Resolution of the Ombudsman which recommended the dismissal of the case against them.There, the Graft Investigation Officer opined that the contract of loan extended by petitioners to Engr. Alfredo M. Atienza for the repair, maintenance and operation of the latters motor vessel was necessary for the transportation needs of the inhabitants of the Province of Oriental Mindoro, which had just suffered three successive typhoons.The loan of provincial funds was supposedly extended by the Sangguniang Panlalawigan of Oriental Mindoro under Section 468[31 of R.A. 7160 (The Local Government Code of 1991), pursuant to the General Welfare provision embodied in Section 16 thereof, which states: SEC. 16.General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare.Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. As enunciated above, however, the Resolution must be established as their defense during the trial.It was not even offered and admitted as evidence by the Sandiganbayan.It was merely attached to petitioners Supplemental Pleading in Support of Motion to Quash Information.[32 Furthermore, the Resolution does not bear the approval of the Ombudsman.[33 In any event, the Ombudsman subsequently denied petitioners motion for reinvestigation.The fact that Special Prosecutor Leonardo P. Tamayo and Deputy Special Prosecutor Robert E. Kallos recommended the dismissal of the case against petitioners is of no moment, especially since the same Special Prosecutor and Deputy Special Prosecutor signed the Comment filed before this Court wherein they extensively argued against the instant petition.The continuing objection and opposition of the prosecution to petitioners motion to quash the Information removes this case from the exception to the above-cited rule that in the determination of whether the facts alleged constitute an offense, only the allegations in the Information, whose truth and veracity are hypothetically admitted, should be considered. Indeed, the findings of the Graft Investigation Officer are contradicted by the following disquisition by the Ombudsman in the Resolution finding probable cause to charge Petitioners, to wit: The subject loan does not fall within the context of the general welfare clause under Section 16 of the Local Government Code.The loan in question was more inclined to promote the personal or business interest of Engr. Atienza rather than to boost the common welfare of the people in Mindoro.In the credit agreement itself, while the problem of transport system was addressed in passing under its whereas clause (introductory part) of the said contract, however, the same was not mentioned in the body of the said agreement.There is no provision in the contract to obligate Engr. Atienza towards the improvement of transport service for the people of Oriental Mindoro.In short, it is not clear in the said agreement that Engr. Atienza is mandated to render transport service for the general welfare of the people in Mindoro.xxxxxxxxx. xxx xxx xxx. As embodied in the credit agreement, the purpose of the loan being stated therein was to finance the cost of the repair, operation and maintenance of Atienzas vessel.This in essence is indeed a private affair.It suits Atienzas personal aggrandizement.In synthesis, the subject loan has the attributes of a private interest as opposed to public purpose.Consequently the subject loan does not rhyme with the requirement that government funds shall be used/spent strictly for public purpose.xxxxxxxxx.[34 In the final analysis, the conflicting findings of the Ombudsman boil down to issues of fact which, however, are not within our province to resolve.As has been oftrepeated, this Court is not a trier of facts.[35 This is a matter best left to the Sandiganbayan. Petitioners argue that the dismissal by the Ombudsman of the administrative case against them based on the same subject matter should operate to dismiss the criminal case because the quantum of proof in criminal cases is proof beyond reasonable doubt, while that in administrative cases is only substantial evidence.While that may be true, it should likewise be stressed that the basis of administrative liability differs from criminal liability.The purpose of administrative proceedings is mainly to protect the public service, based on the time-honored principle that a public office is a public trust.On the other hand, the purpose of the criminal prosecution is the punishment of crime.[36 Moreover, one of the grounds for the dismissal of the administrative case against petitioners is the fact that they were reelected to office.Indeed, a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office.The rationale for this holding is that when the electorate

put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct.If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.[37 However, the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus: The ruling, therefore, that when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any refers only to an action for removal from office and does not apply to a criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole.This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned.Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense.[38 There is, thus, no reason for the Sandiganbayan to quash the Information against petitioners on the basis solely of the dismissal of the administrative complaint against them. Finally, petitioners invoke the ruling in Tatad v. Sandiganbayan,[39 where this Court dismissed the criminal cases against petitioner for the inordinate delay of three years in the conduct of preliminary investigations which violated his right to due process and the constitutional guarantee of speedy disposition of cases.In the case at bar, petitioners allege that while the letter-complaint against them was dated March 10, 1994, the Ombudsman resolved to file the Information against them three years later, on February 14, 1997, and in fact the Information was filed with the Sandiganbayan on April 8, 1997. By way of explanation for the perceived delay, the Special Prosecutor, in his Comment to the petition, enumerated the chronology of events beginning from the receipt of the letter-complaint to the filing of the Information.It appears therefrom that in most cases the extended periods of time were devoted to verifications and investigations, first by the National Bureau of Investigation and then by the Ombudsman.Within the Office of the Ombudsman, the complaint had to undergo separate investigations by the Fact-Finding Investigation Bureau and the Evaluation and Preliminary Investigation Bureau.During the preliminary investigation itself, petitioners sought extensions of time before they filed their counter-affidavits. Thus, the ruling in Tatad does not apply here.In that case, the delay was exacerbated by the fact that the charges against petitioner were found to be politically motivated.In the case at bar, there is no indication that the complaint against petitioners was filed to serve political ends.Neither is the delay vexatious, capricious or oppressive.On the contrary, what appears is that the prosecutors exercised extreme care in verifying, evaluating and assessing the charges against petitioners before making a finding of probable cause. For certiorari to lie, it must be shown that the Sandiganbayan acted with grave abuse of discretion,[40 or more specifically, that it exercised its power arbitrarily or despotically by reason of passion or personal hostility; and such exercise was so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform it or to act in contemplation of law.[41 Petitioners failed in this respect. WHEREFORE, in view of the foregoing, the petition for certiorari is DISMISSED.The Temporary Restraining Order issued by this Court on May 16, 2000 is LIFTED.The Sandiganbayan is DIRECTED to conduct proceedings in Criminal Case No. 23624 with deliberate dispatch. Republic v. Desierto This resolves the Motion for Reconsideration and the Second Motion for Reconsideration filed by private respondent Cojuangco, Jr. as well as the Motion for Reconsideration filed by petitioner Republic of the Philippines. On September 23, 2002, the Court, in the above-entitled case, granted the petition for certiorari filed by the Republic of the Philippines. The resolution of the Ombudsman in OMB-0-90-2811 dismissing the Republics complaint was set aside, and the Ombudsman was ordered to proceed with the preliminary investigation in said case and to exclude respondents Teodoro D. Regala and Jose C. Concepcion as defendants. Respondent Eduardo M. Cojuangco, Jr. and petitioner Republic of the Philippines then filed their respective motions for reconsideration of the aforesaid decision. Both were denied by the Court in its Resolution dated August 16, 2004. Respondent Cojuangco, Jr. filed a second motion for reconsideration on the ground, among others, that the Resolution dated August 16, 2004, was promulgated without the requisite division of five as required by A.M. No. 99-8-09-SC. The Court in its Resolution dated April 25, 2005 recalled the Resolution dated August 16, 2004 and the (first) Motion for Reconsideration together with the Second Motion for Reconsideration is deemed submitted for resolution. In his first Motion for Reconsideration, respondent Cojuangco argues that: a. It was because of lack of evidence or probable cause that the Ombudsman dismissed the complaint in OMB-0-90-2811, not because the offense has prescribed or that LOI 926 and PD Nos. 961 and 1468 precluded prosecution under RA No. 3019 and Article 186 of the Revised Penal Code. Since the Court in its decision of September 23, 2002 did not overturn the Ombudsmans finding of lack of probable cause, the Ombudsmans Resolution of June 2, 1997 may not be nullified. b. No evidentiary basis exists for the Courts finding that the offense had not prescribed; it was, consequently, error for the Court to have found that the offense charged had not prescribed. c. It was also error for the Court to have found that PD Nos. 961 and 1468, LOI No. 926 may not be taken into account in determining whether the respondent violated R.A. No. 3019 and Article 186 of the Revised Penal Code. d. The Court, apparently, overlooked respondents contention that his constitutional right to speedy disposition of his case has been violated warranting dismissal of OMB-0-90-2811.[1] Petitioner Republic of the Philippines, for its part, questions the Courts ruling ordering the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811.[2] The Court will first resolve respondent Cojuangcos motions for reconsideration. In his second Motion for Reconsideration, respondent raises the same issues which were earlier submitted in his first Motion for Reconsideration, i.e., as to the existence of probable cause and the matter of prescription.[3] The Court denies both motions of respondent Cojuangco, Jr.

Graft Investigation Officer II Aleu A. Amante, in his Resolution dated June 2, 1997, recommended the dismissal of the case on the finding that there is no sufficient evidence to engender a well-founded belief that violation of the Anti-Graft Law was committed and that respondents are probably guilty thereof.[4] Contrary to respondents argument, such conclusion is basically premised on the finding that the acquisition by UNICOM of the sixteen oil mills was done in accordance with P.D. No. 961,[5] and not because there was no sufficient evidence that private respondents are probably guilty of the charges against them. Amantes recommendation specifically stated that respondents cannot be made criminally liable for implementing a government policy because there is no element of evident bad faith or malice.[6] And, as is stated in the assailed Decision, the validity of LOI No. 926, and P.D. Nos. 961 and 1468 will not protect respondents from criminal prosecution for violations of R.A. No. 3019 and Article 186 of the Revised Penal Code, to wit: Moreover, we categorically held in the Orosa case that the fact the transactions were done pursuant to P.D. Nos. 961 and 1468 will not shield the respondents from being charged considering that prosecution for violations of R.A. 3019 involves questions as to whether the contracts or transactions entered pursuant thereto by the private respondents were manifestly and grossly disadvantageous to the government; whether they caused undue injury to the government; and whether the private respondents were interested for personal gain or had material interests in the transactions. Similarly in the present case, contrary to the Ombudsmans belief, LOI No. 926 and P.D. Nos. 961 and 1468 cannot protect private respondents from criminal prosecution as they are being charged with commission of acts tantamount to violations of R.A. 3019 and Article 186 of the Revised Penal Code.[7] (Emphasis supplied) In other words, while P.D. Nos. 961 and 1468 may have sanctioned UNICOMs acquisition of the sixteen oil mills, it should not deter the Ombudsman from determining in the preliminary investigation whether such acquisition caused undue prejudice, disadvantage and injury to the government, or that private respondents had a material and personal interest in the acquisition thereof, acts which are defined as corrupt practices and declared unlawful under R.A. No. 3019. These questions have not been taken into consideration by the Ombudsman when he concluded that there is no sufficient evidence to engender a well-founded belief that violation of the Anti-Graft Law was committed and that respondents are probably guilty thereof. If the Court were to adhere to private respondents argument that valid laws shall be taken into account in determining whether there was a violation of R.A. No. 3019 and Article 186 of the Revised Penal Code, then the validity of laws would create a blanket shield and there would be no prosecution for violations of R.A. No. 3019 and Article 186 of the Revised Penal Code, as all acts committed by public officers will be beyond reach, despite the undue damage, injury and prejudice to the government, and the personal gain and material interest of the public officers involved. Moreover, it is not true that the Court has no evidentiary basis for its finding that the offense had not prescribed. As stated in the assailed Decision, since the ten-year prescriptive period in violation of R.A. No. 3019 is governed by Section 2 of Act No. 3326, and applying further the ruling in Domingo vs. Sandiganbayan,[8] the complaint in this case, which was filed on March 2, 1990, was well within the prescriptive period. The counting of the applicable ten-year prescriptive period in this case commenced from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution, and the filing of the complaint with the Presidential Commission on Good Government (PCGG) on March 2, 1990. Between these dates, at the most, only four (4) years had lapsed. Hence, the complaint was timely filed. The Court likewise finds respondents contention in his motions that the seven-year delay in the disposition of the preliminary investigation by the Ombudsman warrants the dismissal of the case against him, without merit. In the case of Dela Pea vs. Sandiganbayan,[9] the Court had the occasion to re-state the doctrine that: The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay. Despite the finding that there was a considerable delay by the Sandiganbayan in the disposition of the petitioners case, the Court did not dismiss their case for the reason that the failure of the petitioners therein to assert their right to a speedy disposition of their case amounts to a waiver of such right. Thus, the Court held: Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their Motion to Quash/Dismiss, [o]ther than the counter-affidavits, [they] did nothing. Also, in their petition, they averred: Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not file nor send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the preliminary investigation. They slept on their right a situation amounting to laches. The matter could have taken a different dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of their cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not waiving that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the petitioner therein was insensitive to the implications and contingencies of the projected criminal prosecution posed against him by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with his acquiescence.[10] (Emphasis supplied) In respondent Cojuangcos case, records shows that the last pleading filed prior to the Ombudsmans Resolution dated June 2, 1997 was respondents Motion to Suspend Filing of Counter-Affidavit, which was filed on May 15, 1991.[11] Between 1991 and 1997, respondent did nothing to assert his right to a speedy disposition of his case. Clearly, his silence during such period amounts to a waiver of such right. Moreover, respondents right to a speedy disposition of his case should not work against and preclude the people's equally important right to public justice[12] considering that the funds used to acquire the 16 moth-balled oil mills came from the coconut levy funds, which are not only affected with public interest, but are, in fact, prima facie public funds.[13] It is noted that the Courts decision in the Orosa case,[14] which is cited in the decision of the present case, was set aside per Resolution dated July 7, 2004, on the ground that two of the respondents therein, Ma. Clara Lobregat and Jose C. Concepcion, were deprived of their right to file their comments on the petition, and as such, the case was not yet ripe for resolution when the Court rendered its decision. Be that as it may, said resolution does not bear any consequence on the present case as the jurisprudence relied upon in the Orosa case are still valid and binding precedents. As regards petitioner Republics motion that the assailed Decision be reconsidered insofar as the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811 is concerned, the Court finds the same bereft of merit. According to petitioner, respondents Regala and Concepcion should not be excluded as respondents because they are being charged for illegal acts committed in their official capacity as members of the Board of Directors of UNICOM and UCPB, in conspiracy with the other private respondents.[15] Such argument, however, has already been overruled by the Court in both the Regala[16] and Castillo[17] cases, wherein the Court ordered the exclusion of petitioners therein from the acts complained of in connection with the legal services they rendered to the other respondents. Thus, the Court held in the Castillo case that: It is true that unlike in Regala, petitioner in the present case is not being required to name his clients. However, the case of Regala is still applicable to the present case because the two cases are the same in more important aspects.

The fact of the lawyer-client relationship between petitioner and defendants Enriquezes and Panlilios was immediately raised by petitioner as one of his affirmative defenses. In the same vein, in Regala the professional relationship was raised merely as a defense by defendant lawyers and was not yet proved during the trial. This notwithstanding, this Court struck out the complaint against the lawyers. The respondent Republic argued in its Comment that: Moreover, the rule of confidentiality under the lawyer-client relationship is not a valid ground to dismiss a complaint against a party. It is merely a ground for disqualification of a witness (Section 24, Rule 130, Rules of Court) and may only be invoked at the appropriate time, such as, when a lawyer is under compulsion to answer as witness, as when, having taken the witness stand, he is questioned on such confidential communication or advice, or is being otherwise judicially coerced to produce, through subpoena duces tecum to otherwise, letters or other documents containing the same privileged matter. But defendant is not being required to testify about or otherwise reveal any confidential communication made by the client to him or his advice given thereon. What is clear from the complaint is that defendant is being sued as principal defendant for being in conspiracy with the other defendants in the commission of the acts complained of. Besides, the attorney-client privileged communication does not apply if the confidence received by an attorney is for the purpose of advancing a criminal or fraudulent purpose. This was the same argument raised by the Republic in the case of Regala. In overruling the Republics position, this Court ruled: An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objection. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.[18] In this case, respondents Regala and Concepcion were constituted as Members of the Board Directors of UNICOM and UCPB in the course of their duties as counsel, and following the ruling in the Regala and Castillo cases, they should be excluded as defendants to the case. Finally, during the pendency of this petition, respondent Maria Clara L. Lobregat died on January 2, 2004.[19] The death of an accused prior to final judgment terminates his criminal liability as well as the civil liability based solely thereon.[20] Consequently, the case against respondent Lobregat should be dismissed. WHEREFORE, the first and second Motions for Reconsideration filed by private respondent Eduardo M. Cojuangco, Jr., and the motion for reconsideration of petitioner Republic of the Philippines are hereby DENIED with FINALITY. The Decision dated September 23, 2002 is MODIFIED to the effect that the charges against deceased respondent Maria Clara L. Lobregat in OMB-0-90-2811, pending preliminary investigation before the Office of the Ombudsman, is ordered dismissed. SO ORDERED. echegaray v. secretary of justice For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that: 1. 2. 3. 4. 5. The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority; The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to litigation because there is always a possibility that Congress may repeal a law. Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon . . . Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . . . the Honorable Court in issuing the TRO has transcended its power of judicial review. At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit: a. b. c. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law; The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representative to reject any move to review Republic Act No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter, and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman. In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it. Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General. We shall now resolve the basic issues raised by the public respondents.

I First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to end as there should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz: ENTRY OF JUDGMENT This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows: WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision. SO ORDERED. and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of Entries of Judgment. Manila, Philippine. Clerk of Court By: (SGD) TERESITA G. DIMAISIP Acting Chief Judicial Records Office The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as follows: 2 xxx xxx xxx the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has become final the court retains its jurisdiction to execute and enforce it. 3 There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement of judgment; the latter terminates when the judgment becomes final. 4 . . . For after the judgment has become final facts and circumstances may transpire which can render the execution unjust or impossible. 5 In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First Instance, 6 viz: This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution

has been fixed, and notwithstanding the general rule that after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the investigation. The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.1wphi1.nt The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. 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." 9 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 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 10Congress 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 11 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 " . . . 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 department would be a clear usurpation of its function, as is the case with the law in question." 12The 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, . . . which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided: xxx xxx xxx Sec.5. The Supreme Court shall have the following powers. xxx xxx xxx (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. 13 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: xxx xxx xxx Sec. 5. The Supreme Court shall have the following powers: xxx xxx 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 quasijudicial 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. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial. To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state: xxx xxx xxx 5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed. 7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall, be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534535 [1987]. The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. II Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who become insane after his final conviction cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally assumed that due process of law will prevent the government from executing the death sentence upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effects is the same the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the power of the President to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts and their constitutionality has been upheld over arguments that they infringe upon the power of the President to grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government. III Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law. When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens. The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows: xxx xxx xxx a. b. c. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. The resolution of Congressman Golez, et al., that they are against the repeal of the law; The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has served its legal and humanitarian purpose. A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been the subject of endless discussion and will probably never be settled so long as men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of Rights to declare certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who is momentarily the most hated by society. 21 IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. SO ORDERED. Lim v. People The constitutionality of PD 818, a decree which amended Article 315 of the Revised Penal Code by increasing the penalties for estafa committed by means of bouncing checks, is being challenged in this petition for certiorari, for being violative of the due process clause, the right to bail and the provision against cruel, degrading or inhuman punishment enshrined under the Constitution. The antecedents of this case, as gathered from the parties pleadings and documentary proofs, follow. In December 1991, petitioner spouses issued to private respondent two postdated checks, namely, Metrobank check no. 464728 dated January 15, 1992 in the amount of P365,750 and Metrobank check no. 464743 dated January 22, 1992 in the amount of P429,000. Check no. 464728 was dishonored upon presentment for having been drawn against insufficient funds while check no. 464743 was not presented for payment upon request of petitioners who promised to replace the dishonored check. When petitioners reneged on their promise to cover the amount of check no. 464728, the private respondent filed a complaint-affidavit before the Office of the City Prosecutor of Quezon City charging petitioner spouses with the crime of estafa under Article 315, par. 2 (d) of the Revised Penal Code, as amended by PD 818. On February 16, 2001, the City Prosecutor issued a resolution finding probable cause against petitioners and recommending the filing of an information for estafa with no bail recommended. On the same day, an information for the crime of estafa was filed with Branch 217 of the Regional Trial Court of Quezon City against petitioners. The case was docketed as Criminal Case No. Q-01-101574. Thereafter, the trial court issued a warrant for the arrest of herein petitioners, thus: It appearing on the face of the information and from supporting affidavit of the complaining witness and its annexes that probable cause exists, that the crime charged was committed and accused is probably guilty thereof, let a warrant for the arrest of the accused be issued. No Bail Recommended. SO ORDERED.[1] On July 18, 2001, petitioners filed an Urgent Motion to Quash Information and Warrant of Arrest which was denied by the trial court. Likewise, petitioners motion for bail filed on July 24, 2001 was denied by the trial court on the same day. Petitioner Jovencio Lim was arrested by virtue of the warrant of arrest issued by the trial court and was detained at the Quezon City Jail. However, petitioner Teresita Lim remained at large. On August 22, 2001, petitioners filed the instant petition for certiorari imputing grave abuse of discretion on the part of the lower court and the Office of the City Prosecutor of Quezon City, arguing that PD 818 violates the constitutional provisions on due process, bail and imposition of cruel, degrading or inhuman punishment. In a resolution dated February 26, 2002, this Court granted the petition of Jovencio Lim to post bail pursuant to Department of Justice Circular No. 74 dated November 6, 2001 which amended the 2000 Bail Bond Guide involving estafa under Article 315, par. 2 (d), and qualified theft. Said Circular specifically provides as follows: xxx xxx xxx

3) Where the amount of fraud is P32,000.00 or over in which the imposable penalty is reclusion temporal to reclusion perpetua, bail shall be based on reclusion temporal maximum, pursuant to Par. 2 (a) of the 2000 Bail Bond Guide, multiplied by P2,000.00, plus an additional of P2,000.00 for every P10,000.00 in excess of P22,000.00; Provided, however, that the total amount of bail shall not exceed P60,000.00. In view of the aforementioned resolution, the matter concerning bail shall no longer be discussed. Thus, this decision will focus on whether or not PD 818 violates Sections 1 and 19 of Article III of the Constitution, which respectively provide: Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. x x x

Section 19 (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. x x x. We shall deal first with the issue of whether PD 818 was enacted in contravention of Section 19 of Article III of the Constitution. In this regard, the impugned provision of PD 818 reads as follows: SECTION 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the later sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; 2nd. The penalty of prision mayor in its maximum period, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos. 3rd. The penalty of prision mayor in its medium period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By prision mayor in its minimum period, if such amount does not exceed 200 pesos.

Petitioners contend that, inasmuch as the amount of the subject check is P365,750, they can be penalized with reclusion perpetua or 30 years of imprisonment. This penalty, according to petitioners, is too severe and disproportionate to the crime they committed and infringes on the express mandate of Article III, Section 19 of the Constitution which prohibits the infliction of cruel, degrading and inhuman punishment. Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution.[2] Based on this principle, the Court has consistently overruled contentions of the defense that the penalty of fine or imprisonment authorized by the statute involved is cruel and degrading. In People vs. Tongko,[3] this Court held that the prohibition against cruel and unusual punishment is generally aimed at the form or character of the punishment rather than its severity in respect of its duration or amount, and applies to punishments which never existed in America or which public sentiment regards as cruel or obsolete. This refers, for instance, to those inflicted at the whipping post or in the pillory, to burning at the stake, breaking on the wheel, disemboweling and the like. The fact that the penalty is severe provides insufficient basis to declare a law unconstitutional and does not, by that circumstance alone, make it cruel and inhuman. Petitioners also argue that while PD 818 increased the imposable penalties for estafa committed under Article 315, par. 2 (d) of the Revised Penal Code, it did not increase the amounts corresponding to the said new penalties. Thus, the original amounts provided for in the Revised Penal Code have remained the same notwithstanding that they have become negligible and insignificant compared to the present value of the peso. This argument is without merit. The primary purpose of PD 818 is emphatically and categorically stated in the following: WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed by means of bouncing checks; WHEREAS, if not checked at once, these criminal acts would erode the peoples confidence in the use of negotiable instruments as a medium of commercial transaction and consequently result in the retardation of trade and commerce and the undermining of the banking system of the country; WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the existing penalties provided therefor. Clearly, the increase in the penalty, far from being cruel and degrading, was motivated by a laudable purpose, namely, to effectuate the repression of an evil that undermines the countrys commercial and economic growth, and to serve as a necessary precaution to deter people from issuing bouncing checks. The fact that PD 818 did not increase the amounts corresponding to the new penalties only proves that the amount is immaterial and inconsequential. What the law sought to avert was the proliferation of estafa cases committed by means of bouncing checks. Taking into account the salutary purpose for which said law was decreed, we conclude that PD 818 does not violate Section 19 of Article III of the Constitution. Moreover, when a law is questioned before the Court, the presumption is in favor of its constitutionality. To justify its nullification, there must be a clear and unmistakable breach of the Constitution, not a doubtful and argumentative one.[4] The burden of proving the invalidity of a law rests on those who challenge it. In this case, petitioners failed to present clear and convincing proof to defeat the presumption of constitutionality of PD 818. With respect to the issue of whether PD 818 infringes on Section 1 of Article III of the Constitution, petitioners claim that PD 818 is violative of the due process clause of the Constitution as it was not published in the Official Gazette. This claim is incorrect and must be rejected. Publication, being an indispensable part of due process, is imperative to the validity of laws, presidential decrees and executive orders. [5] PD 818 was published in the Official Gazette on December 1, 1975.[6] With the foregoing considerations in mind, this Court upholds the constitutionality of PD 818. WHEREFORE, the petition is hereby DISMISSED. People v. Borja This is an appeal from the consolidated decision of September 8, 1960, by the Court of First Instance of Albay, in Criminal Case No. 2578 for murder, and Criminal Case No. 2590 for frustrated murder, both bearing the Identical titles, PP. vs. Pedro Borja, Pedro Fustigo, Inocencio Demen, Rufino Pavia, Felipe Benavides, Dominador de los Santos, John Doe and Richard Doe. The decision convicted the accused, as follows: t.hqw In Criminal Case No. 2590, the Court, fully convinced that Pedro Borja, Pedro Fustigo, Inocencio Demen, Rufino Pavia, Felipe Benavides and Dominador de los Santos, are guilty beyond the peradventure of reasonable doubt of the crime of frustrated murder, as principals, hereby sentences each of them to undergo imprisonment ranging from six (6) years, one (1) month, and eleven (11) days of prision mayor, as the minimum, to fourteen (14) years, ten (10) months, and twenty-one (21) days of reclusion temporal, as the maximum; to suffer inherent accessory penalties; to indemnify the offended party, Salustiano Isorena, in the sum of P5,000.00, as moral and exemplary damages, severally and jointly, but not to undergo subsidiary imprisonment in case of insolvency, by reason of the nature of the penalty imposed; and to pay the costs of this proceeding on equal basis. In Criminal Case No. 2578, the Court after having been convinced beyond the realm of reasonable doubt of the guilt of Pedro Borja, Pedro Fustigo, Inocencio Demen, Rufino Pavia, Felipe Benavides and Dominador de los Santos, of the crime of murder, as principals, deeply hurting as it is, hereby sentences each of them to the maximum penalty of death; to suffer inherent accessory penalties; to indemnify the offended parties, Mercedes Chuidian Vda. de Gancayco and her children in the sum of P6,000.00 for the death of Santiago Gancayco, Jr., as a matter of law and practice, and another amount in the sum of P30,000.00 as moral and exemplary damages, both severally and jointly, but not to undergo subsidiary imprisonment in case of insolvency, by reason of the nature of the penalty imposed; and to pay the costs of this proceeding on equal basis. In the decision, the trial court pursuant to the Revised Penal Code, Article 5 recommended to the President, through the Secretary of Justice, with respect to the accused Dominador de los Santos, "that executive clemency be extended to him, or that at least his death penalty be minimized or commuted to life imprisonment." The court so recommended because "the testimony of this accused had contributed in a large measure to the Court in its pursuit of truth and justice in these cases." It should be stated here that by resolution of January 24, 1966, the Court noted the contents of de los Santos' motion withdrawing his appeal in this case. It appears that on December 18, 1958, the Anderson Fil-American Guerrillas (AFAG) held a general meeting at the bahay-pulungan of the religious sect known as Watawat Ng Lahi at Barrio Buragwis, Legaspi City. The locale of the meeting was so chosen because many AFAG members are also Watawat members. One of the accused, Pedro Borja, presided over the meeting, which was attended by more than a hundred members. Borja, who has the rank of a full colonel, is the AFAG head for the entire Bicol region, which is said to have 36,000 members. He had good news for the members: he announced that their backpay was forthcoming at the rate of P36,000.00 for a ranking officer, and a lesser amount for those of lower rank.

When the meeting ended, Borja called an exclusive conference among selected officers and members, including the other accused Rufino Pavia, Inocencio Demen, Pedro Fustigo, Felipe Benavides, Dominador de los Santos, Alejo Balimbing, and Tito Oljina (The last two, now deceased, are referred to in the title of this case as John Doe and Richard Doe). At the secret meeting, Balimbing proposed to Borja that they conduct a raid the following morning at the Hacienda San Miguel, located at San Miguel Island, across the bay from Tabaco, Albay. That same evening, Demen cleaned a .45 caliber pistol. The conference over, all eight men slept in the bahaypulungan. When they woke up the next day, December 19, 1958, the eight men held an early-morning conference. Balimbing aired to Borja his grievances against Santiago GAncayco, Jr. the manager of the hacienda. Balimbing charged that it was Gancayco who killed Balimbing's cousin at Rawis, Tabaco, Albay. Balimbing further complained that it was Gancayco who ordered that the camote plantations of the hacienda squatters who were related to Balimbing should be bulldozed. It appears that Balimbing was only rehashing what he had already related to Borja several months before, at the AFAG regional headquarters at Pili, Camarines Sur. That same morning, the eight men left by bus for Tabaco, via Legaspi City. They were armed as follows: Borja had two pistols tucked in a shoulder holster; Pavia had a .45 caliber pistol; Balimbing had a hunting knife with a scabbard; and Fustigo had a pistol. They were attired as follows: Borja wore a khaki suit, black jacket, buri hat, and sunglasses; Demen wore a khaki suit; Fustigo wore a blue shirt and khaki pants; de los Santos wore a red T-shirt, brown jacket, and maong pants; Benavides wore denim pants and printed polo shirt; Pavia wore white pants; and Oljina wore a brown polo shirt and khaki pants. In Tabaco, the group went to Barrio San Jose, where they ate breakfast at the house of de los Santos' brother. Upon Borja's instruction, Balimbing hired a motorboat operated by Mariano Burac, who observed at the trial that the eight men acted suspiciously and conferred sotto voce among themselves. They crossed the bay, and the group disembarked at the hacienda. At a seashore conference, they agreed to pose as members of the Philippine Constabulary, ostensibly on a mission to inspect the firearms of the hacienda. At this time, Borja started to wear a pair of white gloves. They proceeded on their way, and Balimbing tried to open the bamboo gate of the fence surrounding the manager's house. He was accosted by Emilio Lanon, a security guard and barrio lieutenant of the hacienda, who was later one of the principal eyewitnesses for the prosecution. Balimbing and Lanon knew each other. Balimbing introduced his companions as PC soldiers, Identifying Borja as a major and Pavia as a sergeant. On Lanon's advice, Balimbing proceeded to the office and emerged with Salustiano Isorena, the hacienda overseer. Isorena told Lanon to inform Gancayco about the presence of the visitors. Then, on Pavia's advice, he and Isorena went to the house, where Isorena informed Mrs. Gancayco about the visitors. On Mrs. Gancayco's suggestion, the group went to the office to await for Gancayco, who arrived later. Gancayco shook hands with Borja and Pavia. He offered Borja a pack of cigarettes, from which took one stick. Informed of the group's alleged mission, Gancayco instructed Isorena to present the license of the firearms. But Isorena failed to find the license in the office, so Gancayco went to the house to look for it there. While in the house, he instructed his wife to prepare a meal for the guests. Gancayco returned to the office, gave the license to Isorena, and then left. Isorena presented the license to Borja, who remarked that the license listed only five firearms, as against reports received at the headquarters in Albay that there were ten firearms in the hacienda. Borja then ordered Isorena to produce the firearms for inspection; Isorena, in turn, instructed Lanon to get the firearms. Lanon went to the house and obtained a carbine, the magazine of which he removed; as well as shotgun. On his way back to the office, he met de los Santos and Oljina, who took the firearms and the magazine from him. Isorena again instructed Lanon to get the other firearms. In compliance, Lanon sent Jaime Rawit to get the grease-gun from Lanon's house, while Lanon himself went to Gancayco's house to get another grease-gun which had no magazine. Rawit and Lanon met at Gancayco's house and from there, while Lanon was carrying the two grease-guns, he met Demen and Benavides, who took them away. The group had now succeeded in obtaining possession of four of the five firearms, and they were not able to get the one remaining firearm only because it was with an hacienda employee guarding cattle some kilometers away. An atmosphere of menace descended on the hacienda as the men loaded the firearms and took a hostile stance. An apprehensive Isorena asked the equally perturbed Gancayco for instructions, but was only cautioned to remain calm and deal courteously with the group, as Gancayco had already sent someone to Tabaco to request police assistance. During this time, Balimbing was investigating Lanon inside the bodega. Lanon was surrounded by Balimbing with a hunting knife, Pavia with a .45 caliber pistol, and Benavides with a grease-gun. In the course of his interrogation, Balimbing told Lanon that they were going to kill Gancayco, Isorena, Lanon and one Pablo Balimbing, chief herder of the hacienda, because these employees were boothlickers to the Gancaycos. Then Balimbing pushed Lanon out of the bodega. Gancayco and Isorena were talking at the balcony of the house. They were approached by Demen, who had a grease-gun, and Oljina who had a shotgun. De los Santos with a carbine posted himself under the citrus tree near the water tank in front of the house. Gancayco asked to see a search warrant from Demen, and Oljina who referred him to Borja. So Gancayco and Isorena descended and inquired for the warrant from Borja, who was standing in front of the house. Instead of replying, Borja talked to Pavia, who was near the guardhouse. Borja then called Balimbing and, referring to Gancayco and Isorena, ordered him to "fix them up" since it was already getting on towards noon. Borja herded the other men of the hacienda inside the bodega, where they were guarded by Benavides who was armed with a grease-gun, and Fustigo, with a pistol. Borja faced the hacienda personnel, holding in readiness his two pistols. Lanon stood in front of him, facing out of the bodega. In the meantime, Balimbing, Pavia, Demen, de los Santos, and Oljina escorted Gancayco and Isorena towards the office. Isorena went up the stairs and turned around when he reached the top; behind him, de los Santos held a carbine in a ready position. Benavides asked Gancayco for the magazine of the grease-gun he was holding. When Gancayco answered that it had no magazine, Benavides accused him of lying and sideswiped him with the grease-gun. Then Benavides left for the bodega. Now the men surrounded Gancayco in front of the office. Facing him was Balimbing, who was swinging his hunting knife. Also facing him, to Balimbing's right, was Pavia whose jacket, draped over his left arm, concealed his right hand which held a .45 caliber pistol. To Pavia's right was Demen, who was aiming the grease-gun at Gancayco. Slightly behind Demen, Oljina aimed the shotgun at Gancayco. Balimbing accused Gancayco of killing Balimbing's cousin, and demanded that Gancayco produce the .45 caliber pistol which he claimed was used to perpetrate the death. Gancayco explained that it was not he but Solon Demetrio who accidentally shot Balimbing's cousin, and that Gancayco had no such pistol. Pavia interjected that it was unbelievable for Gancayco, as manager of the hacienda, not to have such a pistol. But Gancayco insisted that there was none. While this exchange was taking place, Gancayco, who was unarmed, stood with his back towards the foot of the stairs. He was surrounded by Balimbing who held a hunting knife; Pavia who held a .45 caliber pistol concealed beneath his jacket; Demen, who held the grease-gun with his arms down and the muzzle of the gun pointed slightly upward; and Oljina who held a shotgun. The four men were about two meters away from Gancayco. Up in the balcony, de los Santos stood guard with a carbine in ready position, standing slightly back of Isorena. Gancayco and the four men were about four meters away from Isorena and de los Santos.

Gancayco had insisted that he had no .45 caliber pistol. At this fateful moment, Pavia suddenly jerked his right hand upward and fired point-blank with his .45 caliber pistol at Gancayco. Hit, Gancayco stooped to holed the pit of his stomach and cried, "Aray ko po." Instinctively, he stepped backward and was turning around when Demen, fired at him with a grease-gun. He ran away in a crouching position towards the citrus plantation, while Demen, continued firing at him. Then Demen, aimed rapid fire at Isorena, who fell flat on the balcony floor. Demen's line of fire accidentaly caught de los Santos in the forehead. At the outburst of gunfire, Borja rushed out of the bodega. He saw Gancayco running towards the citrus plantation and he shouted: "Habulin! Habulin!" The men carrying their firearms gave chase; they were led by Demen, and included de los Santos. They ran along the road towards a cluster of houses in the northern part of the hacienda, but they stopped in front of the house of Estrella Cortezano. Balimbing asked Cortezano whether she saw where Gancayco went, but he got a negative answer. As the men ran in pursuit, Gancayco traversed the citrus plantation and reached the cluster of, houses. Although he was bleeding profusely, he managed to cross the road and to open the gate by removing one of the bamboo railings. He then turned towards the trail that wound through the abaca plantation at the left side of the road. While the pursuers tracked their prey, Lanon left the bodega by the back door and went to Gancayco's house. Mrs. Gancayco told him to close all the windows and take the children downstairs, and he complied. Then he left the house and looked for Gancayco whom he found in the abaca plantation, climbing a small hill towards another cluster of houses at the hilltop. Lanon found Gancayco bleeding profusely in the breast. Gancayco, his wife, and children, Isorena, and some other personnel of the hacienda, were able to rendezvous at the seashore. They got into a waiting motorboat and sped away towards Tabaco, in the hope of taking the wounded men to the hospital there. But this was not to be; for en route, Gancayco died in the arms of his wife. His body was brought to Manila, where it was examined and autopsied by the National Bureau of Investigation. Although seriously wounded, Isorena survived. He received first-aid treatment at the Tabaco Hospital and was air lifted the next day to Manila where he was confined, first at the North General Hospital, and then at the National Orthopedic Hospital. Dr. Casiano Flaviano, a resident Physician at the National Orthopedic Hospital who treated Isorena testified that the latter would have died from his injuries had he not received immediate medical attention. While events unfolded on Tabaco Bay, the group of eight men reached the seashore and chanced upon a motorboat anchored there. Balimbing wrapped the four firearms in some anahaw leaves. When the men discovered that the motorboat did not have enough gasoline, they looked for another and dragooned Bienvenido Taller into transporting them. Taller observed that the eight men were excited and apprehensive. Balimbing told him, with some braggadocio that they had just killed Gancayco and Isorena. The men alighted at the lighthouse at Malinao and immediately afterwards, Taller reported to the police authorities of the town. However, he was advised to report to the police authorities of Tabaco, who had jurisdiction over the case. The eight men reached the poblacion of Malinao. On Borjas orders, they bought a jute sack where they placed the firearms. Borja instructed Pavia and Demen, to make their separate way towards Barrio Buragwis. Before he left with Demen, Pavia left his .45 pistol with Balimbing. The remainder of the group boarded a passenger bus going to Tiwi. As the bus stopped near the market at Tiwi another car overtook it and policemen from Tabaco, headed by Chief of Police Ceferino Firaza, alighted and surrounded the bus. Firaza in a loud voice called for the surrender of all those in the bus responsible for the killing at the Hacienda San Miguel. He was suddenly fired upon by Borja and then by Balimbing. The fusillade hit him on the right cheek, and he ordered his men to return fire. The encounter resulted in the death of Balimbing and Oljina the capture of Benavides and de los Santos; and the escape of Borja and Fustigo, Lt. Melanio Rey of the Tabaco police confiscated the firearms, magazines, and ammunition taken from the hacienda; the .45 caliber pistol and its shell; the hunting knife and its scabbard from the dead body of Balimbing; and other paraphernalia from the dead bodies of Balimbing and Oljina. The encounter in Tiwi took place in the afternoon of December 19, 1958. Subsequently, the rest of the band fell one by one into the hands of the law. Pavia, Demen, Fustigo, were arrested, and Borja, the last one to fall, was captured on February 27, 1959 after a nationwide manhunt. The trial judge characterized this narration of the shooting of Gancayco and Isorena as both water tight and airtight. He found that the tenor of the evidence presented consisting in the main of the testimony Isorena, an eyewitness; and of the accused de los Santos, who testified for the state during Borja's separate trial was confirmed by the testimonies of the medico-legal expert and the ballistician. He noted that the five accused who were separately tried from Borja admitted all the facts leading to the shooting, but interposed the common defense of fear of Borja, who, they claimed, had threatened disobedient AFAG members with death. The trial judge was not persuaded and he discounted this common defense, characterizing it as "an after-thought to save their respective skins in the face of the overwhelming evidence of the prosecution pointing to their voluntary participation in the commission of the crimes of murder and frustrated murder." Instead, the trial judge found that the five men participated in the killing "because they were inspired by the juicy thought or promise of an enormous amount of backpay for each." Borja, who was still at large at the time the five accused were being tried, had a separate trial. The trial court found that he "has a version entirely distinct and separate from that of the five accused, which version in turn is astronomically far from the evidence presented by the prosecution." Borja washed his hands of any complicity in the killing which he sought to lay at Balimbing's door. Conveniently for Borja, Balimbing is dead and cannot tell his tale. But like his colleagues, Borja failed to convince the trial judge. Noting that Borja was the commanding officer of eight AFAG regiments in the entire Bicol region, while Balimbing was just a sergeant, the trial court refused to believe that Balimbing openly defied Borja by instigating the sanguinary episode at the hacienda. Instead, the trial court declared: "The contrary was the real and painful truth. Pedro Borja was the leader of the group that raided Hacienda San Miguel, and he was the very one who ordered the liquidation of Santiago Gancayco Jr. and Salustiano Isorena." The trial court found that conspiracy was "conclusively established" and that "the guilt of all the accused has been established by proof above the shadow of doubt." It found that the killing of Gancayco constitutes murder, while the shooting of Isorena constitutes frustrated murder. The trial court held that either evident premeditation or treachery qualifies the crimes to murder and frustrated murder; since the law requires only one qualifying circumstance, the other should be considered as an aggravating circumstance. The trial court found five aggravating circumstances against Fustigo, Demen, Pavia, Benavides, and de los Santos, to wit: t.hqw (1) the crimes of murder and frustrated murder were committed by a band, or with the aid of armed men; (2) means were employed to weaken the defense, wherein is included taking advantage of superior strength; (3) craft, fraud and/or disguise were employed; (4) there was promise of backpay in the commission of the crimes; and (5) there was treachery or evident premeditation, depending upon whatever is used to qualify the crimes to murder and frustrated murder.

With respect to Pedro Borja in both cases the trial court considered against him four aggravating circumstances, consisting of the five above-mentioned, but excluding the promise of backpay. It found another aggravating circumstance in the case of frustrated murder, i.e. dwelling. Hence, in the case of frustrated murder, it found six aggravating circumstances against Fustigo, Demen, Pavia, Benavides, and de los Santos; and five aggravating circumstances against Borja. All the five accused in the first trial admitted practically all the evidence for the prosecution in their testimonies in their own behalf, and additionally in their respective affidavits narrating their individual participation in the commission of the two crimes. Moreover, they freely and voluntarily re-enacted the crime at the hacienda, in the presence of the trial judge. The re-enactment proceedings were photographed and tape recorded, and bore out the version testified to by Isorena and Lanon eyewitnesses for the prosecution. In the Brief for all accused-appellants except Pedro Borja, John Doe, and Richard Doe (John Doe and Richard Doe refer to Alejo Balimbing and Tito Oljina who were killed during the encounter at Tiwi), the five accused Fustigo, Demen, Pavia, Benavides, and de los Santos do not deny their culpability for the offenses charged. In their Brief, they prayed for the reduction of the penalty from death and its accessory penalties, to reclusion temporal and its accessory penalties. They admitted with candor: "The finding of facts in the decision of the trial court having been found to be a faithful narration of the incident as related during the trial of the case and given in the two ocular inspections of the premises where the shooting happened, it would seem a useless endeavor to reiterate said findings of facts, ..." (Brief for the Accused-Appellants, except Pedro Borja, pages 6-7). The five accused controverted the findings of the trial court that there were five aggravating circumstances in the case for murder. Instead, they contended that the trial court should have appreciated only three aggravating circumstances. They reasoned that any of the alleged aggravating circumstances should necessarily be absorbed to qualify the crime of murder, thereby leaving only four aggravating circumstances. Moreover, they argued that the aggravating circumstance of promise of backpay was not alleged in the information, and consequently should not be taken as an aggravating circumstance. We find that the trial court correctly considered that either treachery or evident premeditation qualifies the crime to murder, and hence the other alternative circumstance should be considered as aggravating. We reject the contention of the five accused; for while it is true that the aggravating circumstance of promise or reward was not alleged in the information, nevertheless, it was proven during the trial, and therefore can be considered as a generic aggravating circumstance, though not a qualifying circumstance. (People of the Philippines vs. Navarro, et al., L-20860, November 28, 1964, 12 SCRA 530). On the other hand, as Borja contends, infra, the other aggravating circumstances are absorbed by alevosia or treachery. Hence, if it is treachery which is considered as the qualifying circumstance, there remain two generic aggravating circumstances which attended the commission of the two crimes with respect to the five accused: evident premeditation; and promise or reward (which does not apply with respect to Borja.) The five accused contended that there were three mitigating circumstances in their favor: lack of instruction; fear of Pedro Borja; and lack of motive. We find no merit in this contention. The argument of lack of instruction is based on the allegation that the five accused did not finish primary education. But the defense adduced no proof to establish the existence of this circumstance, leaving in full force the holding that extenuating circumstances must be proven positively and cannot be based on mere deduction or inference. (PP. vs. Sakam, et al., 41566, December 7, 1934, 61 Phil. 27). If by "lack of instruction" the defense refers to illiteracy, it is not sufficient to constitute a mitigating circumstance, for there must also be lack of intelligence. (PP. vs. Gorospe, L-10644-45, February 19, 1959, 105 Phil. 184; PP. vs. Ripas, L6246, May 26, 1954, 95 Phil. 63; PP. vs. Semanada, L-11361, May 26, 1958, 103 Phil. 790; PP. vs. Tengyao, L-14675, November 29, 1961, 113 Phil. 465). The second mitigating circumstance advanced by the five accused is "awe and fear of Pedro Borja." But the element of fear is not one of those enumerated as a mitigating circumstance under the Revised Penal Code, Article 13. If the defense refers to the element of "uncontrollable fear or duress" which is an exempting circumstance under the Revised Penal Code, Article 12, the argument is still invalid, for it has been held that the element of duress should be based on real, imminent or reasonable fear for one's life or limb and should not be speculative, fanciful, or remote fear. (PP. vs. Quilloy No. L-2313, January 10, 1951, 88 Phil. 53). We find no evidence to support the claim that Borja threatened any or all of the other accused. The third alleged mitigating circumstance is lack of motive. We are hard put to discuss this contention because the Revised Penal Code, Article 13 does not include "lack of motive" as one of the mitigating circumstances. Finally, the defense argues that "the undiplomatic attitude of Gancayco and Isorena, bordering on provocation" should be considered as another mitigating circumstance. This contention is not borne out by the evidence; on the contrary, it appears that instead of being "undiplomatic", Gancayco was pacific, and he counselled Isorena that "the best thing for us to do is to talk to them peacefully and follow them, whatever they want." (T.s.n. p. 1466). This leaves as the only remaining assertion of the five accused the claim that "the alleged premeditated conspiracy to kill Gancayco was not clearly revealed in the records of the case." We shall discuss this assertion in dealing with the defense of Borja. In the Brief for the defendant-appellant Pedro Borja, the defense contended that since a separate trial was held for Borja, the trial court erred in rendering a single decision on which the findings of facts respecting Borja, based on evidence adduced during his separate trial, are not distinctively set forth, thereby prejudicially impairing Borja's substantial rights. We find no such impairment of the rights of the accused. The evidence shows that the prosecution established the same facts in the two separate trials. Isorena and Lanon testified as eyewitnesses to the incident of December 19, 1958; de los Santos testified as an eyewitness not only to the same incident, but also to events before and after the shooting, showing conspiracy among the accused. Other persons testified in both trials to supply corroborating evidence. Borja also contended that the trial court erred in not according credence to Borja's defense and in finding him guilty on the basis in part of what is alleged to be incompetent evidence adduced not at his separate trial but at that of his co-accused, and in not acquitting him upon the ground that his guilt was not proven beyond reasonable doubt. This is a blanket allegation which can be dealt with summarily, because the testimonies of common witnesses in both trials clearly establish facts incriminatory to Borja. More specifically, Borja contended that the trial court erred in finding that a conspiracy existed between Borja and his co-accused. We find this contention to be an excursion outside the perimeters of credibility. Borja was the AFAG commander for the Bicol region. After the second secret conference, he donned spurious armed forces get-up, complete with uniform and two guns. When he was introduced to the hacienda personnel as a PC major in command of the group, it does not appear that he raised any protest. Instead, the evidence shows that he issued the order to Balimbing to "fix them up" referring to Gancayco and Isorena and he also issued the order "Habulin! Habulin!" when Gancayco ran for his life. Borja consistently acted the leader as he led the dash for illicit freedom. He led the group in fleeing the island; instructed that the firearms should be secreted away in a jute sack; and ordered his men to separate into two groups when his group was surrounded by Tabaco policemen near Tiwi, where Borja led the gunfight. He eluded his trackers for more than two months until his capture. To flee the fold of the law is to admit that one has transgressed that law. (PP. vs. Wilson, et al., 30012-15, March 7, 1929, 52 Phil. 907). Borja's uncontested actions would be gratuitous and illogical, unless located within the frame of conspiracy, which is their only reasonable context. The evidence shows that Borja acted in concert with the other accused in pursuance of the same objective. Hence, conspiracy attaches and it is no longer necessary to obtain proof as to the previous agreement or decision to commit the crime. (PP vs Cadag, L-13830, May 31, 1961, 2 SCRA 388; PP. vs. Peralta, L-19069, October 29, 1968, 25 SCRA 759; PP. vs. Alcantara, L-26867, June 30, 1970, 33 SCRA 812). Borja further contended that assuming his criminal liability, the trial court erred in appreciating the qualifying circumstances of treachery and evident premeditation; and the generic aggravating circumstances of band or aid of armed men; use of means to weaken the defense; craft, fraud, and/or disguise. This contention for the first part flies in the face of the evidence. Treachery was present because Gancayco was killed while he was unarmed, and surrounded by enemies with firearms, including two grease-guns. Thus, Gancayco was deprived of any means of defense while his enemies were exposed to no risk arising from the defense which the offended party might have made. True, Borja was inside the bodega when the shooting took place; but his physical absence does not exonerate him, for it was he who ordered

the execution. Moreover, where there is conspiracy, treachery is considered against all the offenders. (PP. vs. Carandang, et al., 32039, February 26, 1930, 54 Phil. 503). The aggravating circumstance of evident premeditation was sufficiently proved, for prior to the shooting on December 19, 1958, the accused met in two secret conferences and discussed the raid on the hacienda in order to avenge themselves by exacting redress from Gancayco for allegedly killing Balimbing's cousin and bulldozing the camote plantations of Balimbing's relatives. However, Borja's contention for the second part is well taken. The defense argues that the circumstance of band and aid of armed men, cannot be taken separately from the circumstance of use of means to weaken the defense, and advantage of superior strength. It was correctly pointed out that all these circumstances are absorbed in treachery and may not be considered independently. (U.S. vs. Estopia, et al., No. 9411, September 29, 1914, 28 Phil. 97; U.S. vs. Oro, No. 5781, August 14, 1911, 19 Phil. 548; U.S. vs. Vitug, et al., No. 5430, September 8, 1910, 17 Phil. 1; PP vs. Sespene No. L-9346, October 30, 1957, 102 Phil. 199; PP. vs. Lumantas, L-28355, July 17, 1969, 28 SCRA 764; PP. vs. Agustin, L-18368, March 31, 1966, 16 SCRA 467; PP. vs. Layson, L-25177, October 31, 1969, 30 SCRA 32). It was also correctly pointed out that treachery absorbs the circumstance of craft, fraud and disguise. (PP. vs. Malig, et al., L-2083, May 30, 1949, 83 Phil. 803). Nonetheless, this leaves the aggravating circumstance of evident premeditation, which applies to all the accused; and the aggravating circumstance of promise of backpay, which applies to all the accused, except Borja. Lastly, Borja contended that, assuming he is criminally liable, the trial court erred in not according him the benefit of the mitigating circumstance of voluntary surrender. We do not view this as error. It appears that Borja did not surrender but was captured on February 27, 1959. His own witness, Captain Eliseo Farol of the Armed Forces of the Philippines, testified that he received a report that Borja was holed up at Barrio Sumakap, Cavinte, Laguna. Accordingly, he sent a ranger team which located the house and called on Borja to come down. As the house was surrounded by soldiers, Borja offered no resistance. Capt. Farol also testified that while Borja was at large, he killed a PC soldier in an armed encounter at Catanauan, Quezon, as a result of which he was indicted for murder in the court of first instance in that province. Capt. Farol also declared that a prize of P2,000.00 was put on Borja's head for being a dangerous fugitive. These are not indicia of the personality seeking voluntary surrender. Mr. Santiago Gancayco, Jr., manager of a 1,700-hectare hacienda and scion of a prominent family, is dead. His demise when he was only in his early thirties was rendered more tragic in that he breathed his last in the bosom of his grieving family, consisting of his wife and six small children, in the course of his flight from ostensible visitors who had suddenly been transformed into cold-blooded killers. Dr. Rizalino Reyes, Chief of the Medico-Legal Division of the National Bureau of Investigation who performed an autopsy on the body of Santiago Gancayco, Jr. testified that his death was due to hemorrhage, severe, secondary to multiple gunshot wounds of the body and that shock, traumatic was contributory. It was abundantly established in the trial court that his killing was attended by treachery, which qualifies the crime committed by the perpetrators into murder. Five of the accused, namely: Pedro Fustigo, Inocencio Demen, Rufino Pavia, Felipe Benavides and Dominador de los Santos have been in custody since December 19, 1958, or shortly thereafter; while Pedro Borja was apprehended on February 27, 1959. It can thus be seen that all of them have been under detention for over twenty years. WHEREFORE, the judgment of the lower court in Criminal Case No. 2590 is hereby affirmed in toto; that in Criminal Case No. 2578 is modified in respect of the principal penalty from death to reclusion perpetua for lack of necessary votes, and in respect of the civil indemnity from P6,000 to P12,000.00. SO ORDERED. Vergara v. Gedorio Petitioners are the tenants of Berlito P. Taripe on a property located in Dr. A. Santos Ave., Paraaque City. On December 24, 2001, they were arrested by Ormoc City policemen by authority of a Warrant of Arrest dated November 19, 2001 issued by Judge Fortunito L. Madrona in Sp. Proc. No. 3695-0 for Issuance of Letters of Administration, Distribution and Partition pending before the Regional Trial Court of Ormoc City (Branch 12). 1 The warrant of arrest stemmed from a motion filed by respondent Eleuteria P. Bolao, as Special Administratrix of the estate of the late Anselma P. Allers, praying that petitioners be held guilty of indirect contempt for not complying with the probate court's order dated October 9, 1999 directing them to pay their monthly rentals to respondent Bolao.2 It appears that pending the settlement of the estate of the deceased Allers, respondent Bolao included the property leased by Taripe to petitioners in the inventory of the estate. The probate court issued the assailed Order dated October 5, 1999, portions of which read as follows: 1. SUBMITTED FOR RESOLUTION is an omnibus motion filed by the Petitioner-Administratrix, informing among others, the submission of the Inventory of the Estate of the decedent, referred as Motion-Annex 'A' thereof. The Inventory shows that the properties left by the deceased consists of Real and Personal Properties, as well as Credits and Collectibles, itemized under letter heading A, B, and C of the Inventory, respectively. 2. The Real Properties are occupied by some lessees, namely: Cargo Bridge Philippines Corporation, represented by its President Mr. Bernhard Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs. Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie Jalalon, Mrs. Jona Sarvida, Mrs. Analyn Malunes, Mrs. Edna Rubi, Mrs. Josephine Saballa, Mr. Benjamin Vergara, Mr. Jerry Peligro, Mrs. Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers' Property Compound at 8110 Dr. A. Santos Ave., San Dionisio, Paraaque City. xxx xxx xxx

5. It is further shown that all known intervenors, lessees and heirs were served of the motion and notified of the hearing, with no opposition except intervenor Berlito P. Taripe, based on his claim against the estate, which may be treated in due time for claims against the estate. However, the motion under consideration refers to the return to the court of the true Inventory of the Estate of the deceased within three (3) months as directed under Section 1, Rule 83 which sets a specific period of time to submit, otherwise it is violated. The opposition is not tenable. 6. Finding the motion meritorious, the same is hereby GRANTED. As prayed for, the Inventory of the Estate attached therewith as Motion-Annex 'A' (sic) and considered as a compliance of the required return of the true Inventory of the estate of the decedent. 7. Further, the lessees above-cited and listed in the Inventory are directed to pay their respective monthly rental regularly starting the month of August, 1999, including arrears if any, to the duly appointed Special Administratrix Mrs. Eleuteria P. Bolao, until further notice. xxx xxx xxx

Let copies of this Order together with the Inventory served to all above-cited. SO ORDERED.3 (Emphasis Ours) Copies of the order were sent on October 12, 1999 to petitioners via registered mail.4 Five months later, on motion of respondent Bolao, as Special Administratrix, the probate court issued a writ of execution on March 3, 2000 to enforce the aforesaid order dated October 5, 1999. The Sheriff submitted a return dated August 10, 2000 stating that on June 5, 2000, he met with petitioners but failed to collect the rentals due on the property as Taripe had already collected from them three months advance rentals. 5 On August 4, 2000, respondent Bolao filed a motion to require petitioners to explain why they should not be cited in indirect contempt for disobeying the October 5, 1999 order of the probate court.6 Petitioners were served copies of the motion by registered mail.7 The probate court granted the motion in its Resolution dated September 7, 2000, portions of which read as follows: The Motion to Exclude Certain Parcels of Land as part of the Estate of the decedent is also denied for lack of merit. The properties sought to be excluded by intervenor Bertito P. Taripe are titled/registered in the name of the decedent and therefore they should be included in the inventory of the intestate estate of Anselma Allers. If intervenor has claims against the estate, he should file a separate action against the Administratrix in accordance with Rule 87 of the Revised Rules of Court. As it is, intervenor cannot claim ownership over properties registered in the name of the decedent by mere motion. The Return of the Deputy Sheriff of the Writ of Execution is noted. Petitioner's motion to let the lessees explain why they should not be cited for contempt for disobeying the Court's order is granted. All lessees listed on the Writ of Execution are hereby ordered to explain within twenty (20) days from receipt of this order why they should not be cited for indirect contempt of the Court for disobeying the Court's Order dated October 5, 1999, and the Writ of Execution dated May 29, 2000. SO ORDERED. (Emphasis Ours) Petitioners were furnished copies of the said Order on September 27, 2000 by registered mail. 8 Six months later, in a letter dated March 18, 2001, some of the petitioners, together with the other tenants of the property, informed the probate court that they are "freezing" their monthly rentals as they are in a quandary as to whom to pay the rentals.9 Respondent Bolao then filed on March 20, 2001, a motion to cite petitioners in contempt, which was set for hearing on May 11, 2001. 10 In its Order dated May 11, 2001, the probate court found petitioners guilty of indirect contempt and ordered them to pay a fine of P30,000.00 each and to undergo imprisonment until they comply with the probate court's order for them to pay rentals.11 Petitioners again wrote the probate court on June 11, 2001 asking that the indirect contempt "slapped" against them be withdrawn. They stated that their failure to attend the May 11, 2001 hearing was due to financial constraints, most of them working on construction sites, receiving minimum wages, and repeated that the reason why they are freezing the monthly rentals is that they are uncertain as to whom to remit it.12 Upon motion of respondent Bolao, the probate court, per its Order dated November 16, 2001, issued a warrant of arrest on November 19, 2001. On December 24, 2001, petitioners were arrested. On December 26, 2001, petitioners filed with the Court of Appeals a petition for the issuance of a writ of habeas corpus.13 On January 3, 2002, the appellate court ordered the temporary release of petitioners.14 After due proceedings, the appellate court rendered its decision on March 26, 2002 denying the petition for lack of merit. The dispositive portion of the decision reads: WHEREFORE, the instant petition for issuance of a writ of habeas corpus is hereby DENIED for lack of merit. This Court's resolution ordering the temporary release of the lessees is hereby RECALLED. The lessees are ordered REMANDED to the custody of the Jail Warden of Ormoc City until they have complied with the orders of the probate court. No pronouncement as to costs. SO ORDERED.15 Their motion for reconsideration having been denied, petitioners filed herein petition for review on certiorari under Rule 45 of the Rules of Court, based on the following grounds: I. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER DATED OCTOBER 5, 1999 (ANNEX "E") PARTICULARLY THE PORTION THEREOF WHICH SUMMARILY DIRECTED THE LESSEES TO TURNOVER THEIR MONTHLY RENTALS OF THE APARTMENTS OF BERLITO P. TARIPE TO ELEUTERIA P. BOLAO AS SPECIAL ADMINISTRATRIX, IS UNLAWFUL; II. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE MOTION FOR INDIRECT CONTEMPT OF COURT FILED BY RESPONDENT ELEUTERIA P. BOLAO AGAINST THE LESSEES IS NOT THE PROPER REMEDY AND THAT THE ORDER OF THE COURT A QUO GRANTING SAID MOTION AND DECLARING THAT THE LESSEES ARE GUILTY OF INDIRECT CONTEMPT IS A REVERSIBLE ERROR. III. THE APPELLATE COURT ERRED IN NOT HOLDING THAT THE ORDER OF THE COURT A QUO TO ISSUE WARRANT OF ARREST AND THE SAID WARRANT SO ISSUED AS WELL AS THE ACTUAL ARREST OF SAID LESSEES IN COMPLIANCE THEREWITH, ARE UNLAWFUL; IV. THE APPELLATE COURT ERRED IN NOT HOLDING THE TEMPORARY RELEASE OF THE LESSEES PERMANENT.16

The crux of petitioners' arguments is that they were not notified of the motion filed by respondent Special Administratrix Bolao, submitting an inventory of the estate of the late Anselma P. Allers, which includes the property occupied by them. Such being the case, petitioners contend that the order dated October 5, 1999 granting the motion and directing them to pay the rentals to Bolao is unlawful hence, their refusal to comply with it is not contumacious.17 They also assail the appointment of respondent Bolao as Special Administratrix for having been made without the required bond, 18 and that she has no authority to file the motion for indirect contempt, as her powers are limited.19 When service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. 20 The burden of proving notice rests upon the party asserting its existence.21 In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13. In the present case, as proof that petitioners were served with copies of the omnibus motion submitting an inventory of the estate of deceased Allers, respondent Bolao presented photocopies of the motion with a certification by counsel that service was made by registered mail, together with the registry receipts. 22 While the affidavit and the registry receipts proved that petitioners were served with copies of the motion, it does not follow, however, that petitioners in fact received the motion. Respondent Bolao failed to present the registry return cards showing that petitioners actually received the motion.23 Receipts for registered letters and return receipts do not prove themselves, they must be properly authenticated in order to serve as proof of receipt of the letters.24 Respondent also failed to present a certification of the postmaster that notice was duly issued and delivered to petitioners such that service by registered mail may be deemed completed.25 Nonetheless, even in the absence of proof of actual receipt by the petitioners, the subject orders issued by the probate court are valid and enforceable. Petitioners cannot deny the fact that they had actual knowledge of the said orders. They have admitted in their letter dated March 18, 2001 addressed to the probate court that they received the court's order dated October 5, 1999 "barely 2 months before," 26 or sometime in January 2001. Instead of complying with the said order, they "froze" payment of their rentals for the reason that they are caught in the middle of the dispute and are not sure to whom to give the rentals. When respondent Bolao filed the motion to cite them in indirect contempt, setting the hearing on May 11, 2001, again, records show that they had actual knowledge of the same. In their second letter, dated June 11, 2001, addressed to the probate court, they acknowledged that they knew of the hearing set on May 11, 2001, and the reason for their failure to attend was due to financial constraints.27 They likewise admitted in said letter that they knew of the court's order dated May 11, 2001 finding them guilty of indirect contempt.28 Petitioners therefore cannot cry denial of due process as they were actually notified of the proceedings before the probate court. Thus, under the circumstances, it is not imperative to require proof of a formal notice. It would be an idle ceremony where an adverse party, as in this case, had actual knowledge of the proceedings.29 When petitioners refused to remit the rentals to respondent Bolao per Order dated October 5, 1999, a written charge of indirect contempt was duly filed before the trial court and hearing on the motion set on May 11, 2001. As previously stated, petitioners did not attend said hearing despite knowledge thereof; instead, they wrote the court on June 11, 2001 asking that the contempt findings against them be withdrawn. Clearly, they were given the opportunity to be heard, and as aptly stated by the court, they were given more than sufficient time to comply with the Order dated October 5, 1999. 30 Despite the foregoing, we find that the trial court's finding of contempt and the order directing the imprisonment of petitioner to be unwarranted. The salutary rule is that the power to punish to contempt must be exercised on the preservative, not vindictive principle, and on the corrective and not retaliatory idea of punishment. Court must exercise their contempt powers judiciously and sparingly, with utmost self-restraint.31 In Halili vs. Court of Industrial Relations,32 the Court quoted the pronouncements of some American courts, to wit: Except where the fundamental power of the court to imprison for contempt has been restricted by statute, and subject to constitutional prohibitions where a contemnor fails or refuses to obey an order of the court for the payment of money he may be imprisoned to compel obedience to such order. [Fla.Revell v. Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v. Branch, 132 S.E. 303; 144 Va. 244]. (17 C.J.S. 287). . . . It has been said that imprisonment for contempt as a means of coercion for civil purpose cannot be resorted to until all other means fail [Mich.Atchison, etc. R. co. v. Jennison, 27 N.W. 6, 60 Mich. 232], but the court's power to order the contemnor's detension continues so long as the contumacy persists [Ark.Lane v. Alexander, 271 S.W. 710, 168 Ark. 700] (17 C.J.S. 289).33 which we hereby adopt as proper guidelines in the determination of whether the Court of Appeals erred in affirming the order of the trial court finding petitioners guilty of indirect contempt of court and directing their imprisonment for their contumacious refusal to pay the rentals to the administratrix. In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine Constitution expressly provides that no person shall be imprisoned for debt. Debt, as used in the Constitution, refers to civil debt or one not arising from a criminal offense.34 It means any liability to pay arising out of a contract, express or implied.35 In the present case, petitioners, as recognized lessees of the estate of the deceased, were ordered by the probate court to pay the rentals to the administratrix. Petitioners did not comply with the order for the principal reason that they were not certain as to the rightful person to whom to pay the rentals because it was a certain Berlito P. Taripe who had originally leased the subject property to them. Clearly, the payment of rentals is covered by the constitutional guarantee against imprisonment. Moreover, petitioners cannot be validly punished for contempt under Section 8, Rule 71 of the Rules of Court to wit: SEC. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. (7a) because herein subject order is not a special judgment enforceable, under Section 11, Rule 39, which provides: SEC. 11. Execution of special judgment. When a judgment requires the performance of any act other than those mention in the two preceding sections, a certified copy of judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. Section 9 of Rule 39 refers to the execution of judgments for money, thus: SEC. 9. Execution of judgments for money, how enforced. (a) Immediate payment on demand. The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial court of the locality. The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. (b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode or payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. (c) Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of payment to the judgment obligee. (8a, 15a) while Section 10 of the same Rule refers to execution of judgments for specific acts such as conveyance, delivery of deeds or other specific acts vesting title; sale of real or personal property, delivery or restitution of real property, removal of improvements on property subject of execution and delivery of personal property. The order directing the payment of rentals falls within the purview of Section 9 as quoted above. Until and unless all the means provided for under Section 9, Rule 39 have been resorted to and failed, imprisonment for contempt as a means of coercion for civil purposes cannot be resorted to by the courts. 36 In Sura vs. Martin, Sr.,37 we held that: Where an order for the arrest and imprisonment of defendant for contempt of court (for failure to satisfy a judgment for support on ground of insolvency) would, in effect, violate the Constitution. Thus, petitioners could not be held guilty of contempt of court for their continued refusal to comply with the probate court's order to pay rentals to the administratrix nor could they be held guilty of contempt for disobeying the writ of execution issued by the probate court, which directs therein the Sheriff, thus: Should lessees fail to pay the aforementioned amounts on rentals, then of the goods and chattels of said lessees you may cause to be made the sum sufficient to cover the aforestated amounts, but if no sufficient personal properties are found thereof to satisfy this execution, then of the real properties you make the sums of money in the manner required by law and make return of your proceeding under this writ within the reglementary period.38 It was the sheriff's duty to enforce the writ.39 Under Section 9(b), Rule 39, of the Rules of Court, in cases when the execution calls for payment of money and the obligor cannot pay all or part of the obligation in cash, certified bank check or other mode or payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. The writ of execution issued by the trial court in this case commanded its sheriff to collect from petitioners the rentals due from the property, and should they fail to pay, from petitioners' personal/real properties sufficient to cover the amounts sought to be collected. 40 It was not addressed to petitioners. It pertained to the sheriff to whom the law entrusts the execution of judgments,41 and it was due to the latter's failure that the writ was not duly enforced.

In fine, the Court of Appeals committed a reversible error in affirming the Decision dated November 16, 2001 of the trial court. WHEREFORE, finding the petition for review on certiorari to be with merit, the decision dated March 26, 2002 rendered by the Court of Appeals is REVERSED and SET ASIDE. Its Resolution dated January 3, 2002 ordering the temporary release of petitioners is made permanent. The Warrant of Arrest dated November 19, 2001 issued by the Regional Trial Court of Ormoc City (Branch 12) in Sp. Proc. No. 3695-0 is DEEMED RECALLED. No costs. SO ORDERED. Katigbak v. Solicitor General These cases were certified to this Court by the Court of Appeals for resolution on appeal, 1 since the central issue involved is the constitutionality of Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State of Any Property Found To Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor. 2 As posed by the referral resolution, 3 the question is whether or not said statute. ...en cuanto autoriza la confiscacion en favor del Estado de las propiedades ilegalmente adquiridas por un funcionario o empleado del Gobierno antes de la aprobacion de la ley ... es nula y anti-constitutional porque: (a) es una Ley ex-post facto que autoriza la confiscacion de una propiedad privada adquirida antes de la aprobacion de la ley y obliga el funcionario o empleado publico a explicar como adquirio sus propiedades privadas, compeliendo de esta forma a incriminarse a si mismo, y en cierto modo autoriza la confiscacion de dicha propiedad sin debido proceso de la ley; y (b) porque autoriza la confiscacion de inmuebles previamente hipotecados de buena fe a una persona. The proceedings at bar originated from two (2) actions filed with the Court of First Instance of Manila. The first was Civil Case No. 30823, instituted by the Spouses Alejandro Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the Solicitor General be enjoined from filing a complaint against them for forfeiture of property under the above mentioned R.A. No. 1379; (2) said statute be declared unconstitutional in so far as it authorizes forfeiture of properties acquired before its approval, or, alternatively, a new preliminary investigation of the complaint filed against Alejandro Katigbak by NBI officers be ordered; (3) properties acquired by Alejandro Katigbak when he was out of the government service be excluded from forfeiture proceedings; and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena) be sentenced to pay damages. The second action was Civil Case No. 31080, commenced by petition 4 filed by the Republic of the Philippines against Alejandro Katigbak, his wife, Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State of the properties of Alejandro Katigbak allegedly gotten by him illegally, in accordance with R.A. No. 1379. Said properties were allegedly acquired while Katigbak was holding various positions in the government, the last being that of an examiner of the Bureau of Customs; and title to some of the properties were supposedly recorded in the names of his wife and/or son. The cases were jointly tried. The judgment thereafter rendered 5 (1) dismissed the complaint and the counterclaim in Civil Case No. 30823, the first action; and (2) as regards Civil Case No. 31080, ordered "that from the properties (of Katigbak) enumerated in this decision as acquired in 1953,1954 and 1955, shall be enforced a lien in favor of the Government in the sum of P100,000.00. 6 The judgment also declared that the "impatience of the Investigating Prosecutor" during the preliminary inquiry into the charges filed against Katigbak for violation of R.A. No. 1379 did not amount to such arbitrariness as would justify annulment of the proceedings since, after all, Katigbak was able to fully ventilate his side of the case in the trial court; 7 that R.A. No. 1379 is not penal in nature, its objective not being the enforcement of a penal liability but the recovery of property held under an implied trust;8 that with respect to things acquired through delicts, prescription does not run in favor of the offender; 9 that Alejandro Katigbak may not be deemed to have been compelled to testify against his will since he took the witness stand voluntarily. 10 The Katigbaks moved for reconsideration and/or new trial. The Trial Court refused to grant a new trial but modified its decision by reducing the amount of "P 100,000.00 in the dispositive portion ... to P80,000.00." 11 Appeal was taken from this verdict of the Court of Appeals by the Katigbaks which appeal, as earlier stated, was certified to this Court. No less than 18 errors have been attributed by the Katigbaks to the Court a quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post facto law, principally because it imposes the penalty of forfeiture on a public officer or employee acquiring properties allegedly in violation of said R.A. No. 1379 at a time when that law had not yet been enacted. 13 Whatever persuasiveness might have been carried by the ruling on the issue of the learned Trial Judge in 1961, the fact is that the nature of R.A. No. 1379 as penal was in 1962 clearly and categorically pronounced by this Court in Cabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in that case declared that "forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such ... and his other lawful income and the income from legitimately acquired property ... has been held ... to partake of the nature of a penalty"; and that "proceedings for forfeiture of property although technically civil in form are deemed criminal or penal, and, hence, the exemption of defendants in criminal cases from the obligation to be witnesses against, themselves is applicable thereto. 15 The doctrine was reaffirmed and reiterated in 1971 inrepublic v. Agoncillo. 16 And germane is the 1977 ruling of the Court in de la Cruz v. Better Living, Inc. 17 involving among others the issue of the validity and enforceability of a written agreement alleged to be in violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices-Act to the effect that "the provisions of said law cannot be given retro active effect." The forfeiture of property provided for in Republic Act No. 1379 being in the nature of a penalty; and it being axiomatic that a law is ex-post facto which inter alia "makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act," or, "assuming to regulate civil rights and remedies only, in effect imposes a penalty or deprivation of a right for something which when done was lawful," it follows that penalty of forfeiture prescribed by R.A. No. 1379 cannot be applied to acquisitions made prior to its passage without running afoul of the Constitutional provision condemning ex post facto laws or bills of attainder. 18 But this is precisely what has been done in the case of the Katigbaks. The Trial Court declared certain of their acquisitions in 1953, 1954 and 1955 to be illegal under R.A. No. 1379 although made prior to the enactment of the law, and imposed a lien thereon "in favor of the Government in the sum of P100,000.00." Such a disposition is, quite obviously, constitutionally impermissible. As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena, should be made answerable for damages because the filing of the forfeiture proceedings, Civil Case No. 31080, resulted from a preliminary investigation which was allegedly conducted by Fiscal Lucena in an arbitrary and highhanded manner, suffice it to

state that the trial court found no proof of any intention to persecute or other ill motive underlying the institution of Civil Case No. 31080. The trial court further found that during the preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and 26, 1956, Alejandro Katigbak was assisted by reputable and competent counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere fact that the preliminary investigation was terminated against the objection of Katigbak's counsel, does not necessarily signify that he was denied the right to such an investigation. What is more, the Trial Court's factual conclusion that no malice or bad faith attended the acts of public respondents complained of, and consequently no award of damages is proper, cannot under established rule be reviewed by this Court absent any showing of the existence of some recognized exception thereto. The foregoing pronouncements make unnecessary the determination of the other issues. WHEREFORE, the judgment of the Court a quo, in so far as it pronounces the acquisitions of property by the appellants illegal in accordance with Republic Act No. 1379 and imposes a lien thereon in favor of the Government in the sum of P80,000.00 is hereby REVERSED AND SET ASIDE, but is AFFIRMED in all other respects. No pronouncement as to costs. SO ORDERED. Dimayacyac v. CA Before us is a petition for review on certiorari assailing the Decision[1] of the Court of Appeals (CA for brevity) dated November 13, 1998 in CA-G.R. SP No. 43884, denying Atty. Reynaldo P. Dimayacyacs petition for certiorari and ruling that the Regional Trial Court (Branch 227) of Quezon City (RTC for brevity) was correct in denying petitioners motion to quash the information charging petitioner with falsification of public documents, docketed as Criminal Case No. Q-93-49988. The antecedent facts as borne out by the records of the case are accurately narrated in the CA Decision dated November 13, 1998, thus: An information for falsification of public documents docketed as Criminal Case No. Q-91-18037 at the RTC of Quezon City was filed against petitioner along with some others. That information reads: The undersigned Assistant City Prosecutor accuses LOURDES ANGELES, ESTRELLA MAPA, ATTY. PONCIANO R. GUPIT, and ATTY. REYNALDO P.DIMAYACYAC of the crime of FALSIFICATION OF PUBLIC DOCUMENT (under Article 172, first and last paragraph in relation to Article 171 paragraph 2 of the Revised Penal Code), committed as follows: That on or about the 5th day of 1986, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, all private individuals, conspiring together, confederating with and mutually helping one another, did then and there willfully, unlawfully and feloniously commit the act of falsification of public documents, by then and there falsifying or causing the falsification of the following documents, to wit: a) Certification dated March 10, 1986 purportedly signed by a certain Fernando Dizon, Record Management Analyst of the Bureau of Land, Central Office,Manila; (b) Report dated May 5, 1986 purportedly signed by a certain Jose Mariano, Chief Record Management Division of Bureau of Land, Central Office, Manila; and

(c) Sales Certificate and Deed of Assignment allegedly issued by the Bureau of Land in favor of Lourdes Angeles; that despite the fact that said accused knew all the time that said documents are fake and spurious used the same in the Petition for Reconstitution of Records of the technical description of Lots Nos. 755, 777, 778 and 783 of the Piedad Estate covered by TCT No. 14, Decree No. 667, GLRO Record No. 5975 and the issuance of Title thereto filed by Estrella Mapa over and involving the aforesaid lots in Land Registration Case docketed as LRC Case No. 3369 (86) before Branch 99, Regional Trial Court, Quezon City and that by virtue of said falsification and the use of the same as evidence in Court Honorable Presiding Judge Godofredo Asuncion issued an order dated June 30, 1986 granting said petition, and pursuant thereto the Register of Deeds of Quezon City issued Transfer Certificates of Titles Nos. 348156, 348291 and 348292 in the name of Estrella Mapa thereby embracing and/or encroaching the portions of the properties belonging to Romeo D. Gomez, Sixto Agbada, Irene Agbada-Cruz and Mercedes Aristorenas whose properties were embraced and included in the said Transfer Certificates of Titles and in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW. Before his arraignment, petitioner moved to quash the information on two (2) grounds. First, that the officer who filed the information had no legal authority to do so, and second, that more than one offense was charged in the information. Pending resolution of the motion to quash, petitioner was arraigned. By Order of August 23, 1991, Judge Benigno T. Dayaw of Branch 80 of the Regional Trial Court of Quezon City to whose sala Criminal Case No. Q-91-18037 was raffled, holding that the grant or denial of Motion to Dismiss whether the accused is arraigned or not is discretionary on the part of the Court, it citing People vs. IAC, L-66939-41, January 10, 1987, granted the petitioners motion to quash upon the second ground. Accordingly, the information was quashed. More than two (2) years after the quashal of the information in Criminal Case No. Q-91-18037 or on October 19, 1993, the Quezon City Prosecutor filed against the same accused including petitioner two (2) informations for falsification of public documents docketed at the Quezon City RTC as Criminal Case Nos. Q-93-49988 and 49989. The Informations arose from the questioned acts of falsification subject of the earlier quashed information in Criminal Case No. Q-91-18037. Petitioner later filed with Branch 103 of the RTC of Quezon City to which the informations were raffled a motion for the quashal thereof on the ground of double jeopardy, citing Section 3(h) of Rule 117 of the Revised Rules of Court. Petitioner argued at the court a quo that he would be placed in double jeopardy as he was indicted before for the same offenses and the case was dismissed or otherwise terminated without his express consent. By the assailed Order of December 18, 1996, public respondent, Judge Vicente Q. Roxas of Branch 227 of the RTC of Quezon City to which the two (2) informations against petitioner, et al, were eventually lodged, held that the information in Criminal Case No. Q-93-49988 involved a different document as that involved in Criminal Case No. Q-91-18037 which had already been quashed. Resolution of the motion to quash the information in Criminal Case No. Q-93-49989 was stayed pending the

submission by petitioner of the documents required by the court a quo. Public respondent thus denied the motion to quash the information in Criminal Case No. Q-9349988 and ordered petitioners arraignment, he holding that said case did not place petitioner in double jeopardy.[2] Herein petitioner then filed a petition for certiorari before the CA which denied his petition stating in its Decision that since the Information in Criminal Case No. Q-91-18037, on petitioners motion, was quashed on the ground that more than one offense was charged pursuant to Sec. 3 (e) of Rule 117 of the Revised Rules of [3] Court, he is not placed in double jeopardy by the filing of another Information for an offense included in the charge subject of the Information in Criminal Case No. Q91-18037.[4] Hence, herein petition for review on certiorari assigning the following errors of the CA, to wit: I. That the Honorable Court of Appeals ERRED in disregarding the legal doctrine that THERE IS DOUBLE JEOPARDY, in the case now pending before Respondent Judge Vicente Q. Roxas; II. That the Honorable Court of Appeals ERRED in not adhering to the decisions of this Honorable Supreme Court, as well as to applicable jurisprudence on the matter; III. That the Honorable Court of Appeals ERRED in not taking into account that based on the Manifestation and Motion (To Grant Petition) In Lieu of Comment filed by the Office of the Solicitor General, the ORDER of dismissal of Honorable Judge Benigno T. Dayaw in Criminal Case No. Q-9118037 on August 23, 1991 has become final and executory; and IV. That the Honorable Respondent Court of Appeals ERRED in concluding that an ORDER sustaining the motion to quash is not a bar to another prosecution for the same offense, as it has no legal basis.[5] On the other hand, the Office of the Solicitor General (OSG) contends that petitioner, by filing the motion to quash and refusing to withdraw it after he was arraigned, is deemed to have waived his right against double jeopardy, as his motion to quash constituted his express consent for the dismissal of the information. However, the OSG advances the view that the criminal case against herein petitioner may be dismissed for the inordinate delay in the conduct of preliminary investigation for the purpose of filing the proper information, which is a violation of the accuseds constitutional right to due process of law and to speedy disposition of cases. Private respondent complainant Irene Agbada-Cruz, in turn, submits that the Court of Appeals committed no error since the dismissal orquashal of an information is not a bar to another prosecution except when the motion to quash is based on the ground that (1) the criminal action or liability has been extinguished or that (2) the accused has previously been convicted or in jeopardy of being convicted or acquitted of the offense charged, pursuant to Section 6 in relation to Section 3, Rule 117 of the Rules of Court, to wit: Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. - An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 3, sub-sections (f) and (h) of this Rule. Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: (a) (b) (c) (d) (e) (f) (g) (h) That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged or the person of the accused; That the officer who filed the information had no authority to do so; That it does not conform substantially to the prescribed form; That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; That the criminal action or liability has been extinguished; That it contains averments which, if true, would constitute a legal excuse or justification; and That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. (Emphasis supplied)

Thus, private respondent Cruz argues that since the previous information was quashed on the ground of duplicity of offenses charged, the subsequent filing of a proper information is, therefore, not barred. In their Memorandum, private respondents-complainants Romeo Gomez and Mercedes Aristorenas contend that (1) jeopardy does not attach where the dismissal of the information was effected at the instance of the accused; and (2) there was no violation of petitioners right to a speedy disposition of his case since he never raised this issue in the trial court nor in the appellate court, hence, his silence should be interpreted as a waiver of said right to a speedy trial. The issues boil down to (1) whether or not the prosecution of petitioner under the Information docketed as Criminal Case No. Q-93-49988 would constitute double jeopardy, considering that when the Information in Criminal Case No. Q-91-18037 was previously quashed, he had already been arraigned, and (2) whether or not petitioners constitutional right to a speedy disposition of his case has been violated. With regard to the first issue, we are in accord with the ruling of the CA that not all the elements for double jeopardy exist in the case at bench. In People vs. Tac-An,[6] we enumerated the elements that must exist for double jeopardy to be invoked, to wit: Thus, apparently, to raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first. 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). Was the duplicitous information a valid indictment? We answer in the affirmative. In People vs. Bugayong,[7] we ruled that when an appellant fails to file a motion to quash within the time prescribed under Section 1, Rule 117 of the Rules of Court, he is thus deemed to have waived the defect in the Information. In People vs. Manalili,[8] we held that an accused, who fails to object prior to arraignment to a duplicitous information, may be found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the elements of such component crimes in the said information has satisfied the constitutional guarantee that an accused be informed of the nature of the offense with which he or she is being charged. Verily, a duplicitous information is valid since such defect may be waived and the accused, because of such waiver, could be convicted of as many offenses as those charged in the information and proved during trial. The validity of the information having been established, we go on to examine whether the other requisites for double jeopardy to attach are present. In the present case, although there was a valid indictment before a competent court and petitioner, as the accused, had already been arraigned therein, entering a valid plea of not guilty, the last requisite that the case was dismissed or otherwise terminated without his express consent, is not present.

It should be noted that the termination of Criminal Case No. Q-91-18037 was upon motion of petitioner who, on April 1, 1991, filed with the court an Urgent Motion to Quash which was granted by Resolution dated August 23, 1991. In Sta. Rita vs. Court of Appeals,[9] we held that the reinstatement of criminal cases against the accused did not violate his right against double jeopardy since the dismissal of the information by the trial court had been effected at his own instance when the accused filed a motion to dismiss on the grounds that the facts charged do not constitute an offense and that the RTC had no jurisdiction over the case. In this case, considering that since the dismissal of the previous criminal case against petitioner was by reason of his motion for the quashal of the information, petitioner is thus deemed to have expressly given his consent to such dismissal. There could then be no double jeopardy in this case since one of the requisites therefore, i.e., that the dismissal be without accuseds express consent, is not present. As to whether the subsequent filing of the two informations docketed as Q-93-49988 and Q-93-49989 constitutes a violation of petitioners constitutional right to a speedy disposition of cases,[10] we rule in the negative. We are not convinced by the OSGs assertion that the cases ofTatad vs. Sandiganbayan[11] or Angchangco, Jr. vs. Ombudsman,[12] are applicable to the case before us. We see differently. There is no factual similarity between this case before us and the cases of Tatad and Angchangco. In the Tatad case, there was a hiatus in the proceedings between the termination of the proceedings before the investigating fiscal onOctober 25, 1982 and its resolution on April 17, 1985. The Court found that political motivations played a vital role in activating and propelling the prosecutorial process [13] against then Secretary Francisco S. Tatad. In the Angchangco case, the criminal complaints remained pending in the Office of the Ombudsman for more than six years despite the respondents numerous motions for early resolution and the respondent, who had been retired, was being unreasonably deprived of the fruits of his retirement because of the still unresolved criminal complaints against him. In both cases, we ruled that the period of time that elapsed for the resolution of the cases against the petitioners therein was deemed a violation of the accuseds right to a speedy disposition of cases against them. In the present case, no proof was presented to show any persecution of the accused, political or otherwise, unlike in the Tatad case. There is no showing that petitioner was made to endure any vexatious process during the two-year period before the filing of the proper informations, unlike in the Angchangco case where petitioner therein was deprived of his retirement benefits for an unreasonably long time. Thus, the circumstances present in the Tatad and Angchangco cases justifying the radical relief granted by us in said cases are not existent in the present case. We emphasize our ruling in Ty-Dazo vs. Sandiganbayan[14] where we held that: The right to a speedy disposition of cases, like the right to a speedy trial, is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a long period of time is allowed to elapse without the party having his case tried. In the determination of whether or not that right has been violated, the factors that may be considered and balanced are: the length of the delay the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. (Emphasis supplied) Thus, we shall examine how such aforementioned factors affected herein petitioners right. As to the length of delay, it is established that the prosecution did not take any action on petitioners case for two years. From the time that Criminal Case No. Q-91-18037 was dismissed on August 23, 1991, the prosecution failed to effect the very simple remedy of filing two separate informations against petitioner until October of 1993. Indeed, there was a delay in the refiling of the proper informations. However, the prosecution was never given the opportunity to explain the circumstances that may have caused such delay precisely because petitioner never raised the issue of the length of time it took the prosecution to revive the case. There is nothing on record to show what happened during the two-year lull before the filing of the proper informations. Hence, it could not be ascertained that peculiar situations existed to prove that the delay was vexatious, capricious and oppressive, and therefore, a violation of petitioners constitutional right to speedy disposition of cases. What the records clearly show is that petitioner never asserted his right to a speedy disposition of his case. The only ground he raised in assailing the subsequent filing of the two informations is that he will be subjected to double jeopardy. It was only the OSG that brought to light the issue on petitioners right to a speedy disposition of his case, and only when the case was brought to the appellate court on certiorari. Even in this petition before us, petitioner did not raise the issue of his right to a speedy disposition of his case. Again, it was only the OSG that presented such issue to us in the Brief for the State which was only then adopted by petitioner through a Manifestation dated August 3, 1999. We are not convinced that the filing of the informations against petitioner after two years was an unreasonable delay. Petitioner himself did not really believe that there was any violation of his right to a speedy disposition of the case against him. The case which is more in point with the present one before us is Dela Pea vs. Sandiganbayan[15] where we ruled that petitioner therein, for failing to assert their right to a speedy disposition of their cases, was deemed to have waived such right and thus, not entitled to the radical relief granted by the Court in the cases of Tatad and Angchangco. The factual circumstances surrounding herein petitioners case do not demonstrate that there was any violation of petitioners right to a speedy disposition of his case. WHEREFORE, the petition is hereby DENIED for lack of merit. The temporary restraining order issued pursuant to our Resolution datedJanuary 17, 2000 is hereby LIFTED and the Regional Trial Court of Quezon City (Branch 227) is hereby ORDERED to proceed with dispatch with petitioners arraignment in Criminal Case No. Q-93-49988. Moncupa v. Ponce Enrile As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled: "A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restrain is illegal. Any restraint which will preclude freedom of action is sufficient. x x x" This latitudinarian scope of the writ of habeas corpus has, in law, remained undiminished up to the present. The respondents' contention that the petition has become moot and academic must necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however, preclude freedom of action and under the Villavicencio v. Lukbanrule warrant this Court's inquiry into the nature of his involuntary restraint and our relieving him of such restraints as may be illegal. Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner of D. Tuazon Street and Quezon Avenue, Quezon City. Moncupa was brought to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended the prosecution of the petitioner only for illegal possession of firearms and illegal possession of subversive documents under Presidential Decree No. 33. Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the

other for violation of P.D. 33 before the City Court of Quezon City. Against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and further proceedings have not been pursued. And yet, the petitioner's motions for bail were denied by the lower court Hence, be petitioner filed the instant petition. The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister of National Defense with the approval of the President. The respondents stated - "Since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases." The issue to be resolved is whether or not the instant petition has become moot and academic in view of the petitioner's temporary release. It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him. These are: 1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any travel outside Metro Manila. 2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to change his place of residence. 3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by any local or foreign mass media representatives nor give any press release or information that is inimical to the interest of national security." 4) He is required to report regularly to respondents or their representatives. The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom. The petitioner stresses that his temporary release did not render the instant petition moot and academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the respondents." We agree with the petitioner. The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of habeas corpus. In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were no longer under any official restraint. Unlike petitioner Moncupa, they were free to change their domicile without asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the Mayor of Manila and expressed the hope that its "decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment." In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other precedents for such a conclusion are not wanting. The decision in Caunca v. Salazar (82 Phil. 851) states: "An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, freedom to choose one's residence. Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illegally deprived of liberty by duress or physical coercion." In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled: "Although the release in the custody of the Deputy Minister did not signify that petitioners could once again enjoy their full freedom, the application could have been dismissed, as it could be withdrawn by the parties themselves. That is a purely voluntary act. When the hearing was held on September 7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz could have acted in a hasty manner when he setforth the above allegations in his manifestation of August 30, 1978, for Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a release from confinement, also alleged that it was conditioned on their restricting their activities as labor union leaders to the premises of the Trade Unions of the Philippines and Allied Services, presumably in Manila, as well as the Ministry of Labor. As the voting was to take place in the business firm in Bataan, the limits set would nullify whatever efforts they could have exerted. To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was undeniable. If so, the moot and academic character of the petition was far from clear." More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et al. v. Hon. Fidel Ramos, et al., G. R. No. 69270, October 15, 1985, were temporarily released from detention. The respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been temporarily released and their case had, therefore, become moot and academic. The petitioners insisted, however, that their case may be considered moot and academic only "if their release would be permanent." In ruling for the petitioners, we said: "Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to rearrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely 'temporary' it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no elaboration." In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. The respondents have failed to show why the writ may not issue and why the restraints on the petitioner's freedom of movement should not be lifted.

WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs. Reyes v. CA This petition, which WE treated as a special civil action, seeks to set aside respondent Court's civil action, seeks to set aside respondent Court's [a] August 1, 1975 minute resolution denying petitioner's motion for last extension of time of twenty (20) days to file appellant's brief, [b] August 26, 1975 minute resolution motu proprio dismissing petitioner's appeal and [C] October 1, 1975 minute resolution denying petitioner's motion for reconsideration of the August 26, 1975 resolution, all issued in CA-G.R. No. L- 17712-Cr., entitled "People of the Philippines vs. Jennifer S. Reyes", petitioner herein. Aforesaid CA-G.R. No. L-1 7712 was petitioner's appeal, as defendant-appellant therein, to respondent Court from the November 21, 1974 decision of the Court of First Instance of Manila, Branch VI, convicting her of the crime of estafa which was initiated upon complaint of her aunt, Adela Gerona, involving the amount of Ten Thousand Six Hundred Ninety-Five (P10,695.00) Pesos representing the value of the jewelries subject matter of the transaction between them that gave rise to the said criminal complaint. Appellant was sentenced to an indeterminate penalty ranging from four (4) months and twenty-seven (27) days of arrests mayor, as minimum, to two (2) years, eleven (11) months and ten (10) days of prision correccional; and to indemnify the offended party in the amount of Ten Thousand Six Hundred NinetyFive (P10,695.00) Pesos. On May 5, 1975, respondent Court granted petitioner an extension of ninety (90) days from even date with warning of no further extension for firing her brief. Nevertheless, on July 29, 1975, or six days before the expiration of the aforesaid ninety-day period, petitioner's counsel, fearing that he might not be able to submit the appellant's brief on time, filed a second and last extension of twenty (20) days from August 3, 1975 within which to file the appellant's brief, invoking as grounds thereof, pressure of work and his appointment as vice-chairman of the Comite de Festejos of the municipality of Pandan, Catanduanes, as per Resolution No. 258 of the Pandan Municipal Council, copy of which was attached to the motion as Annex "A" thereof (p. 32, C.A. rec.). On August 1, 1975, respondent Court denied the motion. Copy of the resolution of denial was received by petitioner's counsel on August 9, 1975. On August 21, 1975, or two (2) days before the expiration of the twenty-day extension sought by counsel in the denied motion, petitioner filed her printed appellant's brief with the respondent Court. On August 26, 1975 or five days after the firing of the aforesaid appellant's brief, respondent Court issued a resolution dismissing the appeal of petitioner, thus: "Docket's report: No appellant's brief filed within the extension period granted. RESOLVED: APPEAL DISMISSED." A copy thereof was received by petitioner's counsel on August 30, 1975. On September 1, 1975, petitioner's counsel moved to reconsider the aforesaid August 26, 1975 resolution of dismissal and prayed therein for the admission of appellant's brief already filed as of August 21, 1975. Vigorously, petitioner's counsel explained that: +.wph!1 1. ... the extended period given by this Honorable Court for the submission of appellant's brief expired on August 3, 1975, a Sunday; 2. For fear that the undersigned counsel might not be able to finish the brief on time, as he will be out of town, to proceed to Catanduanes, to fulfill a PERSONAL VOW to our Patron Saint, St. Ignatius de Loyola, undersigned counsel prepared on July 26, 1975 a motion for extension of twenty (20) days' time from August 3, 1975, within which to submit appellant's brief; 3. Before undersigned counsel however left for the Province of Catanduanes, he, in the afternoon of July 28, 1975, entrusted to the accusedappellant the prepared draft of the brief for printing, with this instruction that the accused-appellant be the one to submit it for printing with the printer concerned, after which, the printed copies should be submitted to this Honorable Court, furnishing copies thereof to the Solicitor General; 4. Said instructions were given by undersigned to the accused-appellant in view of the fact that undersigned counsel would not be around in Manila from July 29,1975 to the first week of August, 1975, to supervise, pro of read the manuscript and submit the printed copies to this Honorable Court; 5. Even if the prepared draft of the brief was finished by the undersigned counsel on July 28, 1975, and entrusting the same to the appellant for printing, undersigned counsel still caused the filing of the motion for extension of time to file brief with this Honorable Court, for fear that the printing of the same might be delayed by the printing press concerned, for one reason or another, and hence, the brief might not be submitted one time, that is, on or before August 3, 1975: 6. That even if the prepared draft of the brief was given by undersigned counsel to the accused on July 28, 1975, the same was not immediately brought by the accused to a printing press BECAUSE OF FINANCIAL DIFFICULTIES. 7. The printers which appellant approached were demanding for a down payment just to print the aforesaid brief, which down payment accusedappellant could not give, in view of her financial difficulties, appellant being only a mere employee, and THE SOLE BREADWINNER OF THE FAMILY, having her younger brothers and sisters, and even her parents, to support; 8. It was only on the second week of August, 1975, that is, on August 7, 1975, that the accused-appellant, thru the kind help of the friends of her father, was able to get in touch with a printer, and who was willing to print the same on credit basis; 9. The said brief was finally printed and the same was accordingly filed with this Honorable Court on August 21, 1975; The aforesaid motion for reconsideration was verified by counsel and petitioner. Respondent Court forthwith required on September 9, 1975 the Solicitor General to comment within ten (10) days on the aforesaid motion. On September 25, 1975, the Solicitor General filed his comment curtly submitting that "... simply because counsel for appellant had an out-of-town engagement is not sufficient reason for him

to entrust the printing of his brief to his. client who may not be aware of the importance and urgency thereof" (p. 32, rec.). Finding that opposition well-founded, respondent Court accordingly denied the aforesaid motion for reconsideration. Hence, this instant petition, petitioner labelling the questioned resolutions of respondent Court as constitutive of grave abuse of discretion. On December 12, 1975, WE resolved to require respondents to comment on the petition. On January 22, 1976, the Solicitor General filed the required comment; and on February 9, 1976, the Court resolved to give due course to the petition, at the same time treated it as a special civil action and on even date declared the same submitted for decision. WE view the circumstances narrated above as justifying the setting aside of the questioned resolutions of the respondent Court. Accordingly, WE find merit in the petition and grant the relief prayed for by the petitioner. 1. The New Rules of Court allows extension of time within which to file brief upon a showing of a ... good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended" (Section 15, Rule 46). Indicative of this rule is the authority of the courts to grant as many motions for extension as may be asked if good reasons are shown (Gregorio vs. Court of Appeals, et al., 72 SCRA 120, 123-124 [1976]). The allowance or denial of such motions (as well as the setting aside of orders previously issued) rests principally upon the sound discretion of the court to which it is addressed, which discretion, however, must be exercised wisely and prudently, never capriciously, with a view to substantial justice (Cucio vs. Court of Appeals, 57 SCRA 64, 68 [1974] citing Piedad vs. Batuyong, 55 SCRA 763 [1974]). Furthermore, "... such discretion should always be predicated on the consideration that more than the mere convenience of the courts or of the parties in the case the ends of justice and fairness would be served thereby" and that "it is sound judicial discretion" to allow a reasonable transfer of hearing or request for extension timely filed 'when no substantial rights are affected and the intention to delay is not manifest" (ibid., quoting Limon vs. Candida 27 SCRA, 1166, 1169 [l969]). Section' I of Rule 50 under which respondent Court motu proprio dismissed petitioner's appeal merely confers a power and does not impose a duty; and the same is not mandatory but merely directory which thus requires a great deal of circumspection, considering all the attendant circumstances (Lopez, et al. vs. Court of Appeals, et al., 75 SCRA 402, 406 [1977], citing cases). In the instant case, petitioner's motion for extension of tune to file her brief was seasonably filed as the same was undisputably filed six (6) days before the expiration of the existing period. With respect to the grounds invoked by petitioner in her said motion as amplified in her motion for reconsideration with prayer for the admission of her printed brief earlier filed, their sufficiency and validity have not been seriously questioned or disputed. The comment of the Solicitor General failed to grasp the full import of the grounds therein invoked when it casually stated that '... simply because counsel for appellant had an out-of-town engagement is not sufficient reason for him to entrust the printing of the brief of his client who may not be aware of the importance and urgency thereof." For as stated in the July 28 and September 1, 1977 motions of herein petitioner, what impelled her counsel to prepare the said motion for extension of time was counsel's fear that he might not be able to finish the brief on time because of pressure of work and furthermore because he was to be out of town and succeeding days to fulfill a personal vow to his town's patron saint, the feast days of which were to be celebrated on July 30-31, 1975 that necessitated his presence thereat during said days, for the further reason that he was earlier appointed as Vice-Chairman of the Comite de Festejos which was in charge of the fiesta celebration in honor of said patron saint. And that although counsel was able to finish his draft of appellant's brief on July 28, 1975, counsel, before leaving for his hometown, still caused the filing on said date of the aforesaid motion for extension prepared on and dated July 26, 1975, in order to obtain and insure additional and sufficient time within which to timely file the appellant's brief as he feared then that the printing thereof might be delayed for one reason or another like the fact that as aforestated, he will be out of town and therefore will be unable to supervise and proofread the manuscript of the brief. But as it turned out, not only the foregoing factors contributed to the delay in the filing of the said brief but also (and mainly) the financial difficulties of petitioner herself, by reason of which the printing of the brief could not be commenced as the printer demanded a down payment which the petitioner could not then produce. It would thus appear that the main cause of the delay in the filing of the appellant's brief was petitioner's inability, by reason of financial difficulties, to obtain the necessary amount for the printing of the said brief. In this connection, WE have recognized as sufficient ground for extending the existing period within which to file brief the appellant's inability, because of poverty, to obtain the money necessary to pay the expenses of the appeal (Gregorio vs. C.A., et al., 72 SCRA 121, 126 119761, citing 5 CJS 387 and case cited therein). Because the right to appeal in this case is granted by the statute, it is part of due process of law, denial of which violates the due process clause of the Constitution. Moreover, the Constitution likewise guarantees the individual access to all courts, including appellate tribunals, which right cannot be denied him by reason of poverty. 2. There are likewise circumstances in the records indicative of respondent People's lack of serious objection to the motions of petitioner and to the admission of her brief. Thus, respondent People did not file an opposition to petitioner's motion for extension; it did not file a motion to dismiss the appeal even after respondent Court denied the aforesaid motion for extension of time; and finally, upon receipt of petitioner's brief, respondent people filed on September 18, 1975 a motion for extension of time of ninety (90) days within which to file appellee's brief (p. 41, C.A. rec.). In fine, WE are convinced that the ends of justice would be better served by allowing petitioner's appeal to take its due course and thus afford her an untrammelled review of her criminal conviction. WE previously emphasized in Gregorio vs. Court of Appeals (id., p. 125) that "... That is commanded by the 'higher interest of justice dictated by a sense of fairness with which procedural due process is Identified.' Nothing would be lost and the right to a hearing on appeal would be accorded full respect if under the circumstances the motion were granted. More so, when it is considered that the failure of the appellant to file his brief within allotted time does not ipso facto result in the dismissal of the appeal. The appellate Court has still that inherent power and discretion to amend whatever order it had made before in order to render substantial justice." And that furthermore "[t]he expiration of the time to file brief, unlike lateness in filing the notice on appeal is not a jurisdictional matter and may be waived by the sames. Even after the expiration of the time fixed for the filing of the brief, the reviewing court may grant an extension of time, at least where no motion to dismiss has been made. Late firing or service of briefs may be excused where no material injury has been suffered by the appellee by reason of the delay or where there is no contention that appellee's cause was prejudiced ..." (ibid.). WHEREFORE, THE RESPONDENT COURT OF APPEALS' RESOLUTIONS HEREINABOVE ENUMERATED ARE HEREBY ALL SET ASIDE AND THE SAID APPELLATE COURT IS HEREBY DIRECTED TO ADMIT PETITIONER BRIEF AS ACCUSED-APPELLANT AND DECIDE THE SAME ON THE MERIT'S. NO COSTS.