G.R. No. 122485 February 1, 1999 he looked so worried but he did not answer.

he looked so worried but he did not answer. Then he left and walked back to the compound (TSN, September
18, 1995, pp. 4-8; 12-14).
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last saw her daughter
LARRY MAHINAY Y AMPARADO, accused-appellant. wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white
lady sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33).

Isip testified that appellant failed to show up for supper that night. On the following day, June 26, 1995, at
2 o'clock in the morning, appellant boarded a passenger jeepney driven by Fernando Trinidad at the talipapa.
PER CURIAM:
Appellant alighted at the top of the bridge of the North Expressway and had thereafter disappeared (TSN,
September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17).
A violation of the dignity, purity and privacy of a child who is still innocent and unexposed to the ways of worldly pleasures is a
harrowing experience that destroys not only her future but of the youth population as well, who in the teachings of our national
That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria inside the septic tank.
hero, are considered the hope of the fatherland. Once again, the Court is confronted by another tragic desecration of human dignity,
Boy immediately reported what he saw to the victim's parents, Eduardo and Elvira Chan (TSN, September
committed no less upon a child, who at the salad age of a few days past 12 years, has yet to knock on the portals of womanhood,
6, 1995, p. 13).
and met her untimely death as a result of the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor does there exist any other rational
justification other than lust. But those who lust ought not to last. With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved from the septic tank.
She was wearing a printed blouse without underwear. Her face bore bruises. Results of the autopsy revealed
the following findings:
The Court quotes with approval from the People's Brief, the facts narrating the horrible experience and the tragic demise of a
young and innocent child in the bloody hands of appellant, as such facts are ably supported by evidence on record: 1*
Cyanosis, lips and nailbeds,
Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20, 1953. His task was
to take care of Isip's house which was under construction adjacent to her old residence situated inside a Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
compound at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila. But he stayed and slept in
an apartment also owned by Isip, located 10 meters away from the unfinished house (TSN, September 6,
Anterior aspect, middle third, 4.5 x 3.0 cm.
1995, pp. 5-10).

Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, lateral aspect, 2.5 x 1.5 cm. left jaw,
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She used to pass by Isip's
13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5
house on her way to school and play inside the compound yard, catching maya birds together with other
cm. intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular
children. While they were playing, appellant was always around washing his clothes. Inside the compound
area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0
yard was a septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17; 20-22).
cm elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm.
hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd , 12.0 x 10.0 cm. right
On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking spree. Around 10 o'clock anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral aspect,
in the morning, appellant, who was already drunk, left Gregorio Rivera and asked permission from Isip to 1.5 X 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.
go out with his friends (TSN, September 6, 1995; pp. 9-11).
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the compound, saw
Ma.Victoria on that same day three to four times catching birds inside Isip's unfinished house around 4
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial hemorrhages.
o'clock in the afternoon. The unfinished house was about 8 meters away from Rivera's store (TSN,
September 18, 1995, pp. 9-11).
Hemorrhage, subdural, left fronto-parietal area.
On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-law's house between 6
to 7 o'clock p.m. to call his office regarding changes on the trip of President Fidel V. Ramos. The house of Tracheo-bronchial tree, congested.
his in-laws was near the house of Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian
Street. That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of the gate of
Other visceral organs, congested.
the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).

Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to buy lugaw. Norgina Stomach, contain 1/4 rice and other food particles.
Rivera informed appellant that there was none left of it. She notice that appellant appeared to be uneasy and
in deep thought. His hair was disarrayed; he was drunk and was walking in a dazed manner. She asked why CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury, Contributory.

1
 REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock position corresponding heirs of the victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further sum of P23,000.00
to the face of a watch edges congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126). for the funeral, burial and wake of the victim.

Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed by Isip that her Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for the
houseboy, appellant Larry Mahinay, was missing. According to her, it was unlikely for appellant to just automatic review in accordance to Article 47 of the Revised Penal Code as amended by Section 22 of
disappear from the apartment since whenever he would go out, he would normally return on the same day Republic Act No. 7659.
or early morning of the following day (TSN, September 6, 1995, pp. 6-11-27).
SO ORDERED. 4
SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was working in a pancit
factory at Barangay Reparo, Caloocan City. They proceeded to said place. The owner of the factory
Upon automatic review by the Court en banc pursuant to Article 47 of the Revised Penal Code. (RPC), as amended,5 appellant
confirmed to them that appellant used to work at the factory but she did not know his present whereabouts.
insists that the circumstantial evidence presented by the prosecution against him is insufficient to prove his guilt beyond reasonable
Appellant's townmate, on the other hand, informed them that appellant could possibly be found on 8th Street,
doubt. In his testimony summarized by the trial court, appellant offered his version of what transpired as follows:
Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).

(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon, Valenzuela, Metro Manila, he
The policemen returned to the scene of the crime. At the second floor of the house under construction, they
joined Gregorio Rivera and a certain Totoy in a drinking spree. Gregorio Rivera is the brother of Maria Isip,
retrieved from one of the rooms a pair of dirty white short pants, a brown belt and a yellow hair ribbon
appellant's employer. After consuming three cases of red horse beer, he was summoned by Isip to clean the
which was identified by Elvira Chan to belong to her daughter, Ma. Victoria. They also found inside another
jeepney. He finished cleaning the jeepney at 12 o'clock noon. Then he had lunch and took a bath. Later, he
room a pair of blue slippers which Isip identified as that of appellant. Also found in the yard, three
asked permission from Isip to go out with his friends to see a movie. He also asked for a cash advance of
armslength away from the septic tank were an underwear, a leather wallet, a pair of dirty long pants and a
P300.00 (TSN, October 16, 1995, pp. 4-5-5).
pliers positively identified by Isip as appellant's belongings. These items were brought to the police station
(TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
At 2 o'clock in the afternoon, appellant, instead of going out with his friend, opted to rejoin Gregorio Rivera
and Totoy for another drinking session. They consumed one case of red horse beer. Around 6 o'clock p.m.,
A police report was subsequently prepared including a referral slip addressed to the office of the Valenzuela
Zaldy, a co-worker, fetched him at Gregorio Rivera's house. They went to Zaldy's house and bought a bottle
Prosecutor. The next day, SPO1 Virgilio Villano retrieved the victim's underwear from the septic tank (TSN,
of gin. They finished drinking gin around 8 o'clock p.m. After consuming the bottle of gin, they went out
August 23, 1995, pp. 3-8; 14-17).
and bought another bottle of gin from a nearby store. It was already 9 o'clock in the evening. While they
were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant
After a series of follow-up operations, appellant was finally arrested in Barangay Obario Matala, Ibaan, left (TSN, October 16, 1995, pp. 6-7).
Batangas. He was brought to the Valenzuela Police Station. On July 7, 1995, with the assistance of Atty.
Restituto Viernes, appellant executed an extra-judicial confession wherein he narrated in detail how he raped
On his way home, appellant passed by Norgina Rivera's store to buy lugaw. Norgina Rivera informed him
and killed the victim. Also, when appellant came face to face with the victim's mother and aunt, he confided
that there was none left of it. He left the store and proceeded to Isip's apartment. But because it was already
to them that he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his co-
closed, he decided to sleep at the second floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and
conspirators (TSN, August 14,1995, pp. 13-21).
Boyet arrived carrying a cadaver. The two placed the body inside the room where appellant was sleeping.
As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape the dead body of
Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information which reads:2 the child or they would kill him. He, however, refused to follow. Then, he was asked by Zaldy and Boyet
to assist them in bringing the dead body downstairs. He obliged and helped dump the body into the septic
tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again, they would kill him. At
That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the jurisdiction of this
4 o'clock the following morning, he left the compound and proceeded first to Navotas and later to Batangas
Honorable Court the above-named accused, by means of force and intimidation employed upon the person
(TSN, October 16, 1995, pp. 4-13).
of MARIA VICTORIA CHAN y CABALLERO, age 12 years old, did then and there wilfully, unlawfully
and feloniously lie with and have sexual intercourse with said MARIA VICTORIA CHAN Y CABALLERO
against her will and without her consent; that on the occasion of said sexual assault, the above-named Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas. The police officers
accused, choke and strangle said MARIA VICTORIA CHAN Y CABALLERO as a result of which, said allegedly brought him to a big house somewhere in Manila. There, appellant heard the police officer's plan
victim died. to salvage him if he would not admit that he was the one who raped and killed the victim. Scared, he executed
an extra-judicial confession. He claimed that he was assisted by Atty. Restituto Viernes only when he was
forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).6
Contrary to law.3

This being a death penalty case, the Court exercises the greatest circumspection in the review thereof since "there can be no stake
to which he pleaded not guilty. After trial, the lower court rendered a decision convicting appellant of the crime charged,
higher and no penalty more severe . . . than the termination of a human life." 7 For life, once taken is like virginity, which once
sentenced him to suffer the penalty of death and to pay a total of P73,000.00 to the victim's heirs. The dispositive
defiled can never be restored. In order therefore, that appellant's guilty mind be satisfied, the Court states the reasons why, as the
portion of the trial court's decision states:
records are not shy, for him to verify.

WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable doubt of the crime
The proven circumstances of this case when juxtaposed with appellant's proffered excuse are sufficient to sustain his conviction
charged, he is hereby sentenced to death by electricution (sic). He is likewise condemned to indemnify the
beyond reasonable doubt, notwithstanding the absence of any direct evidence relative to the commission of the crime for which he

2
was prosecuted. Absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence8
and pursuant to settled jurisprudence, 9 conviction may be had on circumstantial evidence provided that the following requisites
concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are proven;
and
3. the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent
with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the
hypothesis that he is innocent and with every other rational hypothesis except that of guilt.10 Facts and circumstances
consistent with guilt and inconsistent with innocence, constitute evidence which, in weight and probative force, may
surpass even direct evidence in its effect upon the court.11
In the case at bench, the trial court gave credence to several circumstantial evidence, which upon thorough review of the Court is
more than enough to prove appellant's guilt beyond the shadow of reasonable doubt. These circumstantial evidence are as follows:
FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the unfinished big
house where the crime happened and the septic tank where the body of Maria Victoria Chan was found in
the morning of June 26, 1995 is located, categorically testified that at about 9:00 in the evening on June 25,
1995, accused Larry Mahinay was in her store located in front portion of the compound of her sister-in-law
Maria Isip where the unfinished big house is situated buying rice noodle (lugaw). That she noticed the
accused's hair was disarranged, drunk and walking in sigsagging manner. That the accused appeared uneasy
and seems to be thinking deeply. That the accused did not reply to her queries why he looked worried but
went inside the compound.
SECOND — Prosecution witness Sgt. Roberto C. Suni, categorically testified that on June 25, 1995 between
6:00 and 7:00 in the evening, on his way to his in-laws house, he met accused Larry Mahinay walking on
the road leading to his in-law's residence which is about 50 to 75 meters away to the unfinished big house
of Maria Isip. That he also saw victim Maria Victoria Chan standing at the gate of the unfinished big house
of Maria Isip between 8:00 and 9:00 in the same evening.
THIRD — Prosecution witness Maria Isip, owner of the unfinished big house where victim's body was
found inside the septic tank, testified that accused Larry Mahinay is her houseboy since November 20, 1993.
That in the morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from her to leave. That
after finishing some work she asked him to do accused Larry Mahinay left. That it is customary on the part
of Larry Mahinay to return in the afternoon of the same day or sometimes in the next morning. That accused
Larry Mahinay did not return until he was arrested in Batangas on July 7, 1995.
FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney driver plying the route
Karuhatan-Ugong and vice versa which include Dian St., Gen. T. de Leon, Valenzuela, Metro Manila,
pinpointed the accused Larry Mahinay as one of the passengers who boarded his passenger jeepney on June
26, 1995 at 2:00 early morning and alighted on top of the overpass of the North Expressway.
FIFTH — Personal belongings of the victim was found in the unfinished big house of Maria Isip where
accused Larry Mahinay slept on the night of the incident. This is a clear indication that the victim was raped
and killed in the said premises.
3
There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or there was any reason
for them to testify falsely against the accused. The absence of any evidence as to the existence of improper
motive sustain the conclusion that no such improper motive exists and that the testimonies of the witnesses,
therefore, should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA
276,. 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
SIXTH — Accused Larry Mahinay during the custodial investigation and after having been informed of his
constitutional rights with the assistance of Atty. Restituto Viernes of the Public Attorney's Office voluntarily
gave his statement admitting the commission of the crime. Said confession of accused Larry Mahinay given
with the assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily given. That
accused did not complain to the proper authorities of any maltreatment on his person (People vs. delos
Santos L-3398 May 29, 1984;150 SCRA 311). He did not even informed the Inquest Prosecutor when he
sworn to the truth of his statement on July 8, 1995 that he was forced, coersed or was promised of reward
or leniency. That his confession abound with details know only to him. The Court noted that a lawyer from
the Public Attorneys Office Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and
explained to the accused his constitutional rights and was present all throughout the giving of the testimony.
That he signed the statement given by the accused. Lawyer from the Public Attorneys Office is expected to
be watchful and vigilant to notice any irregularity in the manner of the investigation and the physical
conditions of the accused. The post mortem findings shows that the cause of death Asphyxia by manual
strangulation; Traumatic Head injury Contributory substantiate. Consistent with the testimony of the
accused that he pushed the victim and the latter's head hit the table and the victim lost consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos
tumama iyong ulo niya sa mesa. Ayon na, nakatulog siya tapos ni-rape ko na siya.
There is no clear proof of maltreatment and/or tortured in giving the statement. There were no medical
certificate submitted by the accused to sustain his claim that he was mauled by the police officers.
There being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to concoct facts
narrated in said affidavit; the confession of the accused is held to be true, correct and
freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6
SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.)
SEVENTH — Accused Larry Mahinay testified in open Court that he was notable to enter the apartment
where he is sleeping because it was already closed and he proceeded to the second floor of the unfinished
house and slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and
dumped it inside his room. That at the point of a knife, the two ordered him to have sex with the dead body
but he refused. That the two asked him to assist them in dumping the dead body of the victim in the septic
tank downstairs. (Tsn pp. 8-9 October 16, 1995). This is unbelievable and unnatural. Accused Larry
Mahinay is staying in the apartment and not in the unfinished house. That he slept in the said unfinished
house only that night of June 25, 1995 because the apartment where he was staying was already closed. The
Court is at a loss how would Zaldy and Boyet knew he (Larry Mahinay) was in the second floor of the
unfinished house.
Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room at the second floor
of the unfinished house where accused Larry Mahinay was sleeping, why will Boyet and Zaldy still brought
the cadaver upstairs only to be disposed/dump later in the septic tank located in the ground floor. Boyet and
Zaldy can easily disposed and dumped the body in the septic tank by themselves.
It is likewise strange that the dead body of the child was taken to the room where accused Larry Mahinay
was sleeping only to force the latter to have sex with the dead body of the child.
 We have no test to the truth of human testimony except it's conformity to aver When by reason or on the occasion of the rape, a homicide is committed the penalty shall be death.
knowledge observation and experience. Whatever is repugnant to these belongs to
the miraculous. (People vs. Santos L-385 Nov. 16, 1979)
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:
EIGHT — If the accused did not commit the crime and was only forced to disposed/dumpted the body of
the victim in the septic tank, he could have apprise Col. Maganto, a high ranking police officer or the lady
1.) When the victim is under eighteen (18) years of age and the
reporter who interviewed him. His failure and omission to reveal the same is unnatural. An innocent person
offender is a parent, ascendant, step-parent, guardian, relative
will at once naturally and emphatically repel an accusation of crime as a matter of preservation and self-
by consanguinity or affinity within the third civil degree, or
defense and as a precaution against prejudicing himself. A person's silence therefore, particularly when it is
the common-law spouse of the parent of the victim.
persistent will justify an inference that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).

2.) When the victim is under the custody of the police or

NINTH — The circumstance of flight of the accused strongly indicate his consciousness of guilt. He left
military authorities.
the crime scene on the early morning after the incident and did not return until he was arrested in Batangas
on July 7, 1995. 12
3.) When the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third
Guided by the three principles in the review of rape cases, to wit:13
degree of consanguinity.

1). An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person
4.) When the victim is a religious or a child below seven (7)
accused, though innocent, to disprove;
years old.

2). In view of the intrinsic nature of the crime of rape, where only two persons are usually involved, the
5.) When the offender knows that he is afflicted with Acquired
testimony of the complainant is scrutinized with extreme caution; and
Immune Deficiency Syndrome (AIDS) disease.

3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to draw strength
6.) When committed by any member of the Armed Forces of
from the weakness of the defense.
the Philippines or Philippine National Police or any law
enforcement agency
the foregoing circumstantial evidence clearly establishes the felony of rape with homicide defined and penalized under
Section 335 of the Revised Penal Code, as amended by Section 11, R.A. 7659, which provides:
7.) When by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation. 14
When and how rape is committed - Rape is committed by having carnal knowledge of a woman under any
of the following circumstances.
At the time of the commission of this heinous act, rape was still considered a crime against chastity,15 although under the Anti-
Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified as a crime against persons under Articles 266-A and 266-B,
1.) By using force or intimidation; and thus, may be prosecuted even without a complaint filed by the offended party.

2.) When the woman is deprived of reason or otherwise
unconscious: and
3.) When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman by force and without consent. 16 (Under
the new law, rape may be committed even by a woman and the victim may even be a
man.) 17 If the woman is under 12 years of age, proof of force and consent becomes immaterial18 not only because force is not
an element of statutory rape, 19 but the absence of a free consent is presumed when the woman is below such age. Conviction will
therefore lie, provided sexual intercourse is proven. But if the woman is 12 years of age or over at the time she was violated, as in
this case, not only the first element of sexual intercourse must be proven but also the other element that the perpetrator's evil acts
with the offended party was done through force, violence, intimidation or threat needs to be established. Both elements are present
in this case.

Whenever the crime of rape is committed with use of a deadly weapon or by two or more persons, the Based on the evidence on record, sexual intercourse with the victim was adequately proven. This is shown from the testimony of
penalty shall be reclusion perpetua to death. the medical doctor who conducted post mortem examination on the child's body:

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. Q: And after that what other parts or the victim did you examine?

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, A: Then I examined the genitalia of the victim.
the penalty shall be reclusion perpetua to death.

4
 Q: And what did you find out after you examined the genitalia of the victim? S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung
anong petsa, basta araw ng Linggo.
A: The hymen was tall-thick with complete laceration at 4:00 o'clock and 8:00 o'clock
position and that the edges were congested. 21. T: Saan lugar ito nangyari?

Q: Now, what might have caused the laceration? S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.

A: Under normal circumstances this might have (sic) caused by a penetration of an 22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?
organ.
S: Hindi ko po alam.
Q: So, the laceration was caused by the penetration of a male organ?
23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong
A: Adult male organ, sir. ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ha ito?

Q: You are very sure of that, Mr. Witness? S: Oho.

A: I am very sure of that.20 24. T: Nung ma-rape mo, nakaraos ka ba?

Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted that he had sexual congress with the S: Naka-isa po.
unconscious child.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng "NAKARAOS",
15. T: Ano ang nangyari ng mga sandali o oras na iyon? maaari bang ipaliwanag mo ito?

S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na S: Nilabasan po ako ng tamod.
ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan
ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon
26 T: Nung nakaraos ka, nasaan parte na katawan ng batang babae yung iyong ari?
na, nakakatulog na siya tapos ni rape ko na siya.

S: Nakapasok po doon sa ari nung babae.

16. T: Ano ang suot nung batang babae na sinasabi mo?

27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong
S: Itong short na ito, (pointing to a dirty white short placed atop this investigator's
ginawa?
table. Subject evidence were part of evidences recovered at the crime scene).

S: Natulak ko siya sa terrace.

17. T: Bakit mo naman ni rape yung batang babae?

28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.

S: Inilagay ko po sa poso-negra.
18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?

29. T: Saan makikita yung poso negra na sinasabi mo?

S: Red Horse po at saka GIN.

S: Doon din sa malaking bahay ni ATE MARIA.

19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra?

S: Sa kuwarto ko po sa itaas.

S: Doon ko lang po inilagay.

20. T: Kailan ito at anong oras nangyari?

5
 31. T: Bakit nga doon mo inilagay siya? A — Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside
the investigation room and the parents of the child who was allegedly raped.
S: Natatakot po ako.
Q — And when you reached the investigation room do you notice whether the
accused already there?
32. T: Kanino ka natatakot?

A — The accused was already there.

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.

Q — Was he alone?
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?

A — He was alone, sir.

S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra.

Q — So, when you were already infront of SPO1 Arnold Alabastro and the other
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
PNP Officers, what did they tell you, if any?

S: Nag-iisa lang po ako.

A — They told us together with Atty. Zapanta that this Larry Mahinay would like to
confess of the crime charged, sir.
35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay
pa ba siya o patay na?
Q — By the way, who was that Atty. Zapanta?

S: Buhay pa po.
A — Our immediate Superior of the Public Attorney's Office.

36. T: Papaano mo siya pinatay?

Q — Was he also present at the start of the question and answer period to the accused?

S: Tinulak ko nga po siya sa terrace.21

A — No more, sir, he already went to our office. I was left alone.

In proving sexual intercourse, it is not full or deep penetration of the victim's vagina; rather the slightest penetration of the male
Q — But he saw the accused, Larry Mahinay?
organ into the female sex organ is enough to consummate the sexual intercourse. 22 The mere touching by the male's organ or
instrument of sex of the labia of the pudendum of the woman's private parts is sufficient to consummate rape.
A — Yes, sir.
From the wounds, contusions and abrasions suffered by the victim, force was indeed employed upon her to satisfy carnal lust.
Moreover, from appellant's own account, he pushed the victim causing the latter to hit her head on the table and fell unconscious. Q — Now, when Atty. Zapanta left at what time did the question and answer period
It was at that instance that he ravished her and satisfied his salacious and prurient desires. Considering that the victim, at the time start?
of her penile invasion, was unconscious, it could safely be concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.
A — If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.

Another thing that militates against appellant is his extra judicial confession, which he, however, claims was executed in violation
Q — And when this question and answer period started, what was the first thing that
of his constitutional right to counsel. But his contention is belied by the records as well as the testimony of the lawyer who assisted,
you did as assisting lawyer to the accused?
warned and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As testified to by the assisting
lawyer:
A — First, I tried to explain to him his right, sir, under the constitution.
Q — Will you please inform the Court what was that call about?
Q — What are those right?
A — We went to the station, police investigation together with Atty. Froilan Zapanta
and we were told by Police Officer Alabastro that one Larry Mahinay would like to A — That he has the right to remain silent. That he has the right of a counsel of his
confess of the crime of, I think, rape with homicide. own choice and that if he has no counsel a lawyer will be appointed to him and that
he has the right to refuse to answer any question that would incriminate him.
Q — And upon reaching the investigation room of Valenzuela PNP who were the
other person present?

6
Q — Now, after enumerating these constitutional rights of accused Larry Mahinay, A — Larry Mahinay said that we will proceed with his statement.
do you recall whether this constitutional right enumerated by you were reduced in
writing?
Q — What was the reply?

A — Yes, sir, and it was also explained to him one by one by Police Officer
A — He said "Opo".
Alabastro.

Q — Did you ask him of his educational attainment?

Q — I show to you this constitutional right which you said were reduced into writing,
will you be able to recognize the same?
A — It was the Police Officer who asked him.
A — Yes, sir.
Q — In your presence?
Q — Will you please go over this and tell the Court whether that is the same document
you mentioned? A — In my presence, sir.

A — Yes, sir, these were the said rights reduced into writing. Q — And when he said or when he replied "Opo" so the question started?

ATTY. PRINCIPE: A — Yes, sir.

May we request, Your Honor, that this document be marked as our Exhibit A. proper. Q — I noticed in this Exhibit A that there is also a waiver of rights, were you present
also when he signed this waiver?
Q — Do you recall after reducing into writing this constitutional right of the accused
whether you asked him to sign to acknowledge or to conform? A — Yes, sir, I was also present.

A — I was the one who asked him, sir. It was Police Officer Alabastro. Q — Did you explain to him the meaning of this waiver?

Q — But you were present? A — I had also explained to him, sir.

A — I was then present when he signed. Q — In Filipino?

Q — There is a signature in this constitutional right after the enumeration, before and A — In Tagalog, sir.
after there are two (2) signatures, will you please recognize the two (2) signatures?
Q — And there is also a signature after the waiver in Filipino over the typewritten
A — These were the same signatures signed in my presence, sir. name Larry Mahinay, "Nagsasalaysay", whose signature is that?

Q — The signature of whom? A — This is also signed in my presence.

A — The signature of Larry Mahinay, sir. Q — Why are you sure that this is his signature?

ATTY. PRINCIPE: A — He signed in my presence, sir.

May we request, Your Honor, that the two (2) signatures identified by my compañero
be encircled and marked as Exhibit A-1 and A-2.
Q — After you said that you apprised the accused of his constitutional right
explaining to him in Filipino, in local dialect, what was the respond of the accused?
Q — And below immediately are the two (2) signatures. The first one is when Larry
Mahinay subscribed and sworn to, there is a signature here, do you recognize this
signature?
A — This is my signature, sir.

7
 Q — And immediately after your first signature is a Certification that you have
personally examined the accused Larry Mahinay and testified that he voluntary
executed the Extra Judicial Confession, do you recognize the signature?
A — This is also my signature, sir.23 (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of the victim and forced him to rape the cadaver is too
unbelievable. In the words of Vice-Chancellor Van Fleet of New Jersey, 24
Evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible
in itself - such as the common experience and observation of mankind can approve as probable under the
circumstances. We have no test or the truth of human testimony, except its conformity to our knowledge,
observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of
judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that
elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying, which opportunity is denied to
the appellate courts.25 In this case, the trial court's findings, conclusions and evaluation of the testimony of witnesses is received
on appeal with the highest respect, 26 the same being supported by substantial evidence on record. There was no showing that the
court a quo had overlooked or disregarded relevant facts and circumstances which when considered would have affected the
outcome of this case27 or justify a departure from the assessments and findings of the court below. The absence of any improper
or ill-motive on the part of the principal witnesses for the prosecution all the more strengthens the conclusion that no such motive
exists. 28 Neither was any wrong motive attributed to the police officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is correct. Under Article 335 of the Revised Penal Code (RPC),
as amended by R.A. 7659 "when by reason or on occasion of the rape, a homicide is committed, the penalty shall be death." This
special complex crime is treated by law in the same degree as qualified rape - that is, when any of the 7 (now 10) "attendant
circumstances" enumerated in the law is alleged and proven, in which instances, the penalty is death. In cases where any of those
circumstances is proven though not alleged, the penalty cannot be death except if the circumstance proven can be properly
appreciated as an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the imposition of the proper
penalty in accordance with Article 53 of the RPC However, if any of those circumstances proven but not alleged cannot be
considered as an aggravating circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty because
Article 63 of the RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353,
if any of the 10 circumstances is alleged in the information/complaint, it may be treated as a qualifying circumstance. But if it is
not so alleged, it may be considered as an aggravating circumstance, in which case the only penalty is death - subject to the usual
proof of such circumstance in either case.
In an apparent but futile attempt to escape the imposition of the death penalty, appellant tried to alter his date of birth to show that
he was only 17 years and a few months old at the time he committed the rape and thus, covered by the proscription on the imposition
of death if the guilty person is below eighteen (18) years at the time of the commission of the crime.31 Again, the record rebuffs
appellant on this point considering that he was proven to be already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos (P50,000.00) but if the
crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by
present amended law, the civil indemnity for the victim shall be not less than seventy-five thousand pesos (P75,000.00).32 In
addition to such indemnity, she can also recover moral damages pursuant to Article 2219 of the Civil Code 33 in such amount as
the court deems just, without the necessity for pleading or proof of the basis thereof. 34 Civil indemnity is different from the award
of moral and exemplary damages. 35 The requirement of proof of mental and physical suffering provided in Article 2217 of the
Civil Code is dispensed with because it is "recognized that the victim's injury is inherently concomitant with and necessarily
resulting from the odious crime of rape to warrant per se the award of moral damages". 36 Thus, it was held that a conviction for
rape carries with it the award of moral damages to the victim without need for pleading or proof of the basis thereof. 37
Exemplary damages can also be awarded if the commission of the crime was attended by one or more aggravating circumstances
pursuant to Article 2230 of the Civil Code38 after proof that the offended party is entitled to moral, temperate and compensatory
damages. 39 Under the circumstances of this case, appellant is liable to the victim's heirs for the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through
lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and
during the time of the custodial interrogation 40 in accordance with the Constitution, jurisprudence and Republic Act No. 7438:
41 It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the Court must update in the light of new legal developments:
1. The person arrested, detained, invited or under custodial investigation must be
informed in a language known to and understood by him of the reason for the arrest
and he must be shown the warrant of arrest, if any; Every other warnings, information
or communication must be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that anystatement he
makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice;

Death being a single indivisible penalty and the only penalty prescribed by law for the crime of "rape with homicide", the court
4. He must be informed that if he has no lawyer or cannot afford the services of a
has no option but to apply the same "regardless of any mitigating or aggravating circumstance that may have attended the
lawyer, one will be provided for him; and that a lawyer may also be engaged by any
commission of the crime"29 in accordance with Article 63 of the RPC, as amended. 30 This case of rape with homicide carries
person in his behalf, or may be appointed by the court upon petition of the person
with it penalty of death which is mandatorily imposed by law within the import of Article 47 of the RPC, as amended, which
arrested or one acting in his behalf;
provides:

5. That whether or not the person arrested has a lawyer, he must be informed that no
The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except
custodial investigation in any form shall be conducted except in the presence of his
when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is
counsel or after a valid waiver has been made;
more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court,
the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty
shall be reclusion perpetua. 6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means - telephone, radio, letter or
messenger - with his lawyer (either retained or appointed), any member of his
(emphasis supplied).
immediate family, or any medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be visited by/confer with duly

8
 accredited national or international non-government organization. It shall be the
responsibility of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is
made voluntarily, knowingly and intelligently and ensure that he understood the
same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed
that it must be done in writing AND in the presence of counsel, otherwise, he must
be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at
any time or stage of the process that he does not wish to be questioned with warning
that once he makes such indication, the police may not interrogate him if the same
had not yet commenced, or the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain
silent, the right to counsel or any of his rights does not bar him from invoking it at
any time during the process, regardless of whether he may have answered some
questions or volunteered some statements;
"That on or about the twenty-sixth (26th) of September, 1992, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and
consent of the owner, and by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously
take, steal and carry away one (1) pc. of 22K grams of gold bracelet worth P3,500.00, one (1) pc. of diamond ring with
letter ‘E’ worth P3,200.00, one (1) pc. of wedding ring worth P800.00, two (2) pairs of gold earring worth P1,600.00
and cash money in the amount of P1,600.00, all in the total amount of Ten Thousand Seven Hundred Pesos
(P10,700.00), Philippine Currency, belonging to Emelita Paragua, and on the occasion of said robbery and for the
purpose of enabling him to take, steal and carry away the above-mentioned items, the herein accused, did then and
there wilfully, unlawfully, feloniously and taking advantage of superior strength and with intent to kill treacherously
attack, assault, hit her with a hard object on the head and then strangle and tie the neck of Raquel Lopez (niece of
Emelita Paragua) with a Cat-V wire to prevent her from breathing and making an outcry, thereby inflicting upon said
Raquel Lopez asphyxia injuries which directly caused her death shortly thereafter." 1
Upon arraignment on February 3, 1993, accused Donato del Rosario, assisted by counsel, pleaded not guilty to the crime charged.
The Regional Trial Court thereafter proceeded with the trial.
Culled from the records are the following:
On September 26, 1992, at about 8:10 in the morning, Emelita Paragua and a companion, a Delia Aquino, left their house at 1657
Balic-Balic, Sta. Rita, Olongapo City to go to the former’s stall in the public market. Raquel Lopez, the 11-year old niece of
Paragua, was left behind as she had no classes that day, a Saturday.

11. He must also be informed that any statement or evidence, as the case may be,
Notified of the news that their house was on fire, they went home.
obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in
whole or in part, shall be inadmissible in evidence.
Paragua saw that the sala set, their merchandise (stuffed toys that they sell at the public market), and the cassette were burned.
When she entered the kitchen, she saw her niece lying on her stomach with a raincoat covering her head and her neck and arms
Four members of the Court — although maintaining their adherence to the separate opinions expressed in People v. Echegaray 42
tied with CATV wire. Parts of her hand and her thigh were burned. Raquel Lopez was already dead when her aunt discovered her.
that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional — nevertheless submit to the ruling of the Court,
The total value of the burned properties was around Thirty Thousand Pesos (P30,000.00). Emelita Paragua likewise discovered
by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed.
that six pieces of her jewelries were missing.

WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of civil indemnity for the heinous rape
SPO1 Ramon Fernandez received a report regarding the fire in Balic-Balic wherein a minor who was identified as Raquel Lopez
which is INCREASED to P75,000.00, PLUS P50,000.00 moral damages.
was found dead. Together with his chief investigator, Leonardo Esteban and other personnel, he went to the scene of the incident
to conduct an investigation.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this
decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning
He found the single-storey house in complete disarray. The sala was set on fire and he found the items therein burned. Likewise
power.
the two bedrooms.

G.R. No. 131036 June 20, 2001

He located the body of Raquel Lopez in the kitchen. Her head was covered with a pink raincoat and around her neck was a CATV
wire. She was lying face down, her hands behind her back.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
Inquiries made revealed that a certain Ramon Ilagan was seen in the vicinity of the house before the incident. Ramon Ilagan was
DONATO DEL ROSARIO, defendant-appellant.
interrogated but denied the accusation against him. Since no evidence could be produced linking him to the crime, he was released.

BUENA, J.:
This is an appeal from the decision of the Regional Trial Court at Olongapo City, Branch 72 in Criminal Case No. 838-92, entitled
"People of the Philippines versus Donato del Rosario," convicting the accused of the crime of robbery with homicide and
sentencing him to reclusion perpetua.
On November 20, 1992, an information was filed against Donato del Rosario charging him of robbery with homicide committed
as follows:
Three days after the incident, the police received information from the live-in partner of Ilagan, that a certain Donato del Rosario
was seen standing at the back of the house of Paragua before the crime was committed and had disappeared since then. Del
Rosario’s mother and common-law wife were questioned about the whereabouts of the accused. SPO1 Fernandez told the mother
of del Rosario that her son was suspected of committing the crimes in Balic-Balic.
On October 2, 1992, the Olongapo City police received a call from the Subic police that Donato del Rosario surrendered to police
officer Fernando Morales, the brother-in-law of his common-law wife, Ruby Tan. Thereafter, SPO1 Fernandez, together with
Inspector Leonardo Esteban and PO3 Laurea, proceeded to Subic to fetch Donato del Rosario.

9
Del Rosario, even without being asked, told them that he really surrendered to Morales because he was being bothered by his
conscience and that he was very willing to accompany them to recover the stolen items. He also volunteered the information as to
where he sold the jewelries that he took from the house of Emelita Paragua.
Thereafter the policemen from Olongapo and Donato del Rosario proceeded to the places mentioned by the latter – Barrio Barretto,
Olongapo City, where the "Lovely Kahael Pawnshop" was located, and Barangay Magsaysay, Iba, Zambales. Del Rosario was not
even handcuffed at the time.
At the Lovely Kahael pawnshop del Rosario pointed out the jewelry that he had pawned. He also signed the pawnshop ticket in
order that a wedding band and a diamond ring with the letter "E" could be redeemed. At the pawnshop he was identified by
Florencio Gamboa, the OIC/appraiser therein.
Afterwards they proceeded to Magsaysay, Iba, Zambales to the shop of Rogelio Adriano. They were not able to immediately
recover a bracelet and a 7-day ring that were sold to Adriano, a watch repairer and a buyer/seller of second hand jewelry, as he
had given them to his son for safekeeping. However, Adriano assured the police that he is going to voluntarily surrender the jewelry
because he learned of the girl who was found dead and of the robbery. His son, Rogelio Adriano, Jr., returned the jewelry to the
police some days later. Both Adrianos identified del Rosario as the person who sold them the jewelry. After the jewelry was
recovered, the police called Emelita Paragua who positively identified the jewels as hers.
Del Rosario was then brought to the Olongapo police station. A lawyer, Atty. Norberto dela Cruz, was called in to assist del
Rosario. During the custodial investigation, Atty. dela Cruz was present the whole time. He informed del Rosario what was stated
in the waiver/confession. It was only when del Rosario said that he fully understood its contents that Atty. dela Cruz signed it as
counsel. SPO1 Fernandez brought the accused and Atty. dela Cruz to Assistant City Prosecutor Martinez for subscription.
As to be expected, Donato del Rosario’s account of the day in question, September 26, 1992, was different.
He alleged that on the morning of September 26, 1992, at around 7:00 A.M., he went to Subic, Zambales to buy containers for his
vinegar and Clorox business. He was with a certain Rancen Anonat, the son of his would-be employer. They returned to Balic-
balic at around 9:00 A.M. and spent the night at the house of Anonat. The following day, he went to the house of his common-law
wife. On the 28th of September, he went to Navotas and returned to Subic the next day. On the 30th he stayed with the brother-in-
law of his common-law wife, Fernando Morales, a police officer in Subic.
It was Morales who informed del Rosario that he was a suspect in the arson case. He was persuaded by Morales to place himself
in the custody of the police pending the investigation of the case, as there was a threat to kill him by a certain Zapanta, a member
of a salvage team in Olongapo. He spent the night in the detention cell in Subic.
On October 1, four policemen from Olongapo arrived. He was led out of the detention cell to talk with the policemen. In the
investigation room, he was told that he would be taken to Olongapo for further investigation. Morales told him to trust the police
as they are in the same corps. He was not handcuffed when he was taken out to the vehicle which would take him to Olongapo.
When they arrived in the police station (Station A), he found his aunt and some people in a room. When he sat down he was boxed
by an unknown man.
Thereafter, he was brought to Station B. He was forced to sign a document, but not before being mauled with a rattan stick and a
chair. While he was being mauled he was forced to admit that he committed the arson.
From the "mayores" in the jail, he found out that the document he had signed was a waiver.
Del Rosario did not recall going to the prosecutor’s office to file or submit his counter-affidavit. Neither did he go to the fiscal’s
office for preliminary investigation.
10
Based on the findings of Dr. Richard Patilano, medico-legal officer, the cause of death of Raquel Lopez was asphyxia by
strangulation and multiple physical injuries. The victim was already dead when the burning took place because the body did not
show any carbonization or black color.
On November 8, 1996, an order was issued stating, among other things, that since the prosecution and the defense agreed that if
witness Raymund Tan (the father of the accused’s common-law wife) will be presented to testify that his son-in-law (Fernando
Morales) accompanied del Rosario in surrendering to the police department of Subic, Zambales, the testimony of the said witness
was dispensed with.2
On April 2, 1997, a decision was rendered by the trial court convicting the accused and imposing the following penalty:
"WHEREFORE, the Court finds the accused Donato del Rosario guilty beyond reasonable doubt of the crime of
Robbery with Homicide and hereby sentences him to the maximum of Reclusion Perpetua or from THIRTY-THREE
(33) YEARS and FOUR (4) MONTHS and ONE (1) DAY to FORTY YEARS, and to indemnify the heirs of Raquel
Lopez y Paragua the amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) and to pay the costs.
"SO ORDERED."3
Hence, this appeal where accused-appellant assigns the following errors allegedly committed by the trial court:
"I
"IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL COURT TO CONVICT APPELLANT WHEN THE
ELEMENTAL REQUISITES OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE ARE NOT
PRESENT.
"II
"THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING DOWN A CONVICTION ON A
CIRCUMSTANTIAL EVIDENCE ABSENT ITS REQUISITE ELEMENTS.
"III
"THE LOWER COURT’S QUESTIONED DECISION OVERLOOKED MATERIAL FACTS OF IMPORTANCE
AND SUBSTANCE WHICH IF CONSIDERED WOULD TILT THE SCALE OF ‘LADY JUSTICE’ TO ACQUIT
THE APPELLANT."
The appeal is unmeritorious.
Accused-appellant Donato del Rosario contends that it is essential to prove the intent to rob and that the intent to rob must come
first before the killing transpired. He is of the impression that not all the essential requisites of the crime of robbery with homicide
were proven.
We hold otherwise.
In the offense of robbery with homicide, a crime primarily classified as one against property and not against persons, the
prosecution has to firmly establish the following elements: (a) the taking of personal property with the use of violence or
intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or
animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a Contrary to accused-appellant’s allegation that he was arrested, we find that he was not, and that he voluntarily surrendered to
generic sense, was committed.4 police officer Fernando Morales of the Subic police.

Animus lucrandi, or intent to gain, is an internal act which can be established through the overt acts of the offender. 5 Although In fact, his surrender was to be the gist of the testimony of Raymund Tan, the father of his common-law wife, had he testified: that
proof as to motive for the crime is essential when the evidence of the theft is circumstantial, the intent to gain or animus lucrandi his son-in-law, Fernando Morales, accompanied del Rosario in surrendering to the police department of Subic, Zambales.11
is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstances (Emphasis supplied) We do not see why Raymund Tan would not say that Morales accompanied del Rosario in surrendering to
reveal a different intent on the part of the perpetrator. "xxx (T)he intent to gain may be presumed from the proven unlawful taking."6 the police if it was not the truth.

Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things subject of the robbery.7
In this case, it was apparent that the reason why accused-appellant stole the jewelry of Emelita Paragua was because he intended
to gain by them. He had already admitted that he needed money to marry his common-law wife.8
We take note of the places where the jewelry were recovered – a pawnshop in Olongapo City, and a stall of a second hand jewelry
buyer in Iba.
We, therefore, find that accused-appellant surrendered to the police authorities, confessed to the crime, volunteered the information
as to where he pawned and sold the jewelry, and went with the Olongapo police willingly to the Lovely Kahael Pawnshop and to
the stall of the Adrianos and to the police station in Olongapo. He admitted that he was not even handcuffed.
After his surrender and the recovery of the jewelry, accused-appellant executed a waiver and confession in the vernacular, in the
presence of his aunt and some persons whom he cannot identify.12 He was assisted by Atty. dela Cruz. The waiver reads:
"W A I V E R

Florencio Gamboa, the OIC/appraiser of the Lovely Kahael Pawnshop, remembered giving the accused-appellant nine hundred "SA SINUMANG KINAUUKULAN:
pesos (P900.00) for the two pieces of jewelry the latter had pawned, while Rogelio Adriano admitted paying the accused the
amount of One Thousand Five Hundred Pesos (P1,500.00) for two jewelries.
"AKO, DONATO DEL ROSARIO Y LACORTE, NASA HUSTONG GULANG AT NAKATIRA SA NR. 1663 Balic-
balic, Sta. Rita, Olongapo City ay nagsasaad ng mga sumusunod:
If gaining through unlawful means was farthest from the mind of the accused, why then did he pawn and sell the jewelry he had
taken from Emelita Paragua for a total amount of two thousand four hundred pesos (P2,400.00)?
"1. Na ako ay kusang sumuko sa Pulisya noong ika-02 ng Oktubre 1992 dahil sa nakokonsensiya ako sa
nagawa kong pagpatay kay Raquel Lopez at pagnanakaw at pagsunog ko sa bahay nila;
The accused vehemently denies having robbed the house of Emelita Paragua. But the testimonies of Gamboa and the Adrianos
that it was the accused who pawned and sold, respectively, the jewelry to them shows that the accused had in his possession the
"2. Na sa dahilang ito ay pinawawalang bisa ko ang aking mga karapatan na nakapaloob sa Art. 125 ng RPC
stolen jewelry. His failure to refute this must be taken against him.
at ako ay pumapayag na pansamantalang magpakulong at pumailalim sa pangangalaga ng mga pulis at para
na rin makaharap ko ang nagrereklamo sa akin.
It is a rule established by an abundance of jurisprudence that when stolen property is found in the possession of one, not the owner,
without a satisfactory explanation of his possession, he will be presumed to be the thief. This rule is in accordance with the
"3. Na nilagdaan ko ang pawawalang bisa ko sa aking mga karapatan bilang patotoo sa nilalaman nito.
disputable presumption "that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and
doer of the whole act."9
(Sgd.) Donato del Rosario
We conclude that accused-appellant went to the house of Emelita Paragua because he intended to rob her. Lamentably, Paragua’s Nagsasaad
niece, Raquel Lopez, was in the way and she had to be dealt with in the direct manner possible. And the means resorted to by the
accused-appellant was to strangle her until her very last breath. Raquel Lopez was killed on the occasion of the robbery because
Assisted by:
she was the only one in the house at that time and the only witness to the crime that accused-appellant committed.

(Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied)

Her autopsy report revealed that she was already dead before the fire started, thus eliminating any inference that arson was
committed to finish her off. The arson was but a ruse to cover up the theft.
A confession to be admissible must be: (1) express and categorical; (2) given voluntarily, and intelligently where the accused
realizes the legal significance of his act; (3) with assistance of competent and independent counsel; (4) in writing, and in the
It is immaterial whether the killing transpired before or after the robbery. In the crime of robbery with homicide, the homicide may
language known to and understood by the confessant; and (5) signed, or if the confessant does not know how to read and write,
precede robbery or may occur after robbery. What is essential is that there is a nexus, an intimate connection between robbery and
thumbmarked by him.14
the killing whether the latter be prior or subsequent to the former, or whether both crimes be committed at the same time. 10

As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. 15 As an officer of the court,
Accused-appellant claims that his arrest was violative of his constitutional rights and that all the evidence obtained thereat were
he has in his favor the presumption of regularity in the performance of his sworn duties and responsibilities.16 Absent any showing
fruits of the poisonous tree and therefore inadmissible in any proceeding of whatever nature and for any purpose. He alleged that
that Atty. dela Cruz was remiss in his duty, the confession of the accused-appellant is valid and binding upon him and is thus
he was mauled to force him to sign a confession.
admissible in evidence.

11
Assuming for the sake of argument that the extrajudicial admission is not binding upon him, let it be stressed that he was positively
identified by Florencio Gamboa, the appraiser of Lovely Kahael Pawnshop, and by Rogelio Adriano and his son, as the person
who pawned and sold the jewelry.
Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the court that the accused voluntarily led them to the place where he
pawned and sold the jewelry so that the jewelry could be recovered. If he was not the culprit, how did he come to know where to
lead the policemen in order to retrieve the jewelry of Emelita Paragua?
Where there is nothing to indicate that a witness was actuated by improper motives, his positive and categorical declarations on
the witness stand under solemn oath deserve full faith and credence.17
We find it incredible that he was mauled to force him to sign his confession, let alone mauled.
Accused-appellant admitted knowing Fernando Morales of the Subic police station. His relationship with the said police officer
would make other police officers be wary of him. They could not have dared maul him as del Rosario would have sent word to
Morales as to the fate he had suffered in the hands of the Olongapo police.
The Olongapo police would have had a hands-off policy with regard to the accused-appellant, as they would not have wanted any
of their friends or relatives to be mauled by the Subic police if they ever get arrested there. Quid pro quo.
In addition, bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient
in view of the standing rule enunciated in cases of People vs. Mada-I Santalani;18 People vs. Balane;19 and People vs. Villanueva,20
"that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to
complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against
their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did
not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors
indicating voluntariness."21
The court a quo did not hand down a conviction based on circumstantial evidence.
The accused-appellant voluntarily surrendered to the police and admitted his guilt by way of the waiver/confession he had signed.
Circumstantial evidence had no place in this case.
Accused-appellant relied on alibi as a defense to belie the accusation against him. However, nobody was presented to corroborate
his statements as to his whereabouts on the day when the robbery, homicide, and arson took place, not even Rancen Anonat who
was his companion on that day and who was with him when the crimes occurred. Already a weak defense, alibi becomes even
weaker by reason of the failure of the defense to present any corroboration. 22
In the absence of showing that the factual findings of the trial judge were reached arbitrarily or without sufficient basis, these
findings are to be received with respect by, and indeed are binding on, the Supreme Court. 23
In every case, courts must specify the award for each item of damages and make a finding thereon in the body of the decision. 24
Prevailing jurisprudence awards only P50,000.00 to the heirs of the victim without need of any evidence other than the fact of the
commission of the crime. The trial court therefore erred in awarding P100,000.00 as indemnity.
WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of appellant is AFFIRMED, with the modification that the
P100,000.00 awarded as indemnity is reduced to P50,000.00 pursuant to the prevailing jurisprudence.
G.R. No. 79269 June 5, 1991
12
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila;
RODOLFO C. SALAS, alias Commander Bilog, respondents.
The Solicitor General for petitioner.
Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI)
for Rodolfo Salas.
DAVIDE, JR., J.:
The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the
Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary
injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias
"Commander Bilog" in Criminal Case No. 86-48926 for Rebellion,1 and the subsequent Order dated July 30, 1987 granting the
motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's
supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support
of its prayer for a reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who
is charged with an otherwise bailable offense, and whether such right may be waived.
The following are the antecedents of this petition:
In the original Information2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later
amended in an Amended Information3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander
Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised
Penal Code allegedly committed as follows:
That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City
of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's
Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts,
have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with
the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen
publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the
purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the
allegiance to that government and its laws, the country's territory or part of it;
That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations,
in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against
the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their
unlawful purpose, such as . . .
(then follows the enumeration of specific acts committed before and after February 1986).
At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on
29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a
cash reward of P250,000.00 was offered for his
capture.4
A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his
co-accused was filed with this Court5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16
October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and
will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled
and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person.
On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts
alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction
over the persons of the defendants; and (d) the criminal action or liability has been extinguished,6 to which petitioner filed an
Opposition7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No.
76009, private respondent categorically conceded that:
xxx xxx xxx
Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over
his person.
In his Order of March 6, 1987,8 respondent Judge denied the motion to quash.
Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail,9 which herein
petitioner opposed in an Opposition filed on 27 May 198710 on the ground that since rebellion became a capital offense under the
provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of
reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence
of his guilt is strong.
On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring
to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty
for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored.
Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially
released for circulation on June 26, 1987.
In his Order of 7 July 198711 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's
petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall
report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition
respondent Judge stated:
. . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which
accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding
P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule
114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before
final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21,
same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as
a matter of right inasmuch as the crime of rebellion ceased to be a capital offense.
As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in
the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with
their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government
before whose courts he invokes his constitutional right to bail, respondent Judge replied:
13
True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right
is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows
the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is
a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution
against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the
worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the
government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77).
To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the
individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State.
Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight
those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions."
The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in
the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be
a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as
a matter of light to bail. Dura est lex sed lex.
In a motion to reconsider12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00
to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional
release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty
imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past
escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder,
homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not
consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien
system based on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental motion for reconsideration13 indirectly asking the court to deny bail to the private
respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not
comply with this main condition of his bail –– to appear in court for trial," a conclusion it claims to be buttressed "by the following
facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of:
1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested;
2. He was not arrested at his residence as he had no known address;
3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to
substantiate his false identity;
4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;
5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also
found to be false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his
arrest,
which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner
further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the
NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the
existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right
in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code,
yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-
preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further
invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of
potentially dangerous resident aliens pending deportation proceedings,14 and that an arrestee may be incarcerated until trial as he
presents a risk of flight;15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an
adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel.16
On 30 July 1987 respondent Judge handed down the Order17 adverted to in the introductory portion of this decision the dispositive
portion of which reads:
WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for
reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious
only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the
amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition
that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every
period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58).
In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the
part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent
to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the
petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of
aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses,
but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of
Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil,
172.
Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues:
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF
DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING
REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION
WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS
OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS.
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF
DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT
RODOLFO SALAS.
in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived
it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in
consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail,
even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very
existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently,
respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to
support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time
that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even
if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed
to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the
likelihood of flight.18
In Our resolution of 11 August 198719 We required the respondents to comment on the petition and issued a Temporary
Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to
private respondent in the amount of P50,000.00.
14
In his Comment filed on 27 August 1987,20 private respondent asks for the outright dismissal of the petition and immediate lifting
of the temporary restraining order on the following grounds:
I
RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM
ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING
THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.
II
RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT
BUT ALSO THE RIGHT TO BAIL.
III
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE
HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS
CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD
BEEN WAIVED.
V
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY
RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE
PROCESS.
We required the petitioner to reply to the comment of private respondent.21 The reply was filed on 18 September 1987.22
In Our resolution of 15 October 198723 We gave due course to the petition and required the parties to file simultaneously their
memoranda within twenty days from notice.
In their respective manifestations and motions dated 5 November24 and 23 November 198725 petitioner and private respondents
asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner
and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 198726 and
1 December 1987,27 respectively.
In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this
petitions,28 which he complied with by filing his Manifestation on 30 May 199029 wherein he manifests that he supports the
petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside
asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him
is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the
attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent
Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules
on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains
that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge.
And now on the issues presented in this case. Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be
denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong.33
But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of
I.
Prisons, supra., We held:

Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before
The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United
the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to
States and that of many states of the Union. And it is said that:
death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which
the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was
the governing law at the time the respondent court resolved the petition for bail. The Constitution of the United States and the constitution of the many states provide that all persons shall
be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption
of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly
We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion
refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in
as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding
cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!34
P20,000.00.30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus:

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed
prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
introduce before the court should resolve the motion for bail.35
Excessive bail shall not be required.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:
Bail, a matter of right: exception. — All persons in custody shall, before final conviction, be entitled to bail as a matter
of right, except those charged with a capital offense or an offense which, under the law at the time of its commission
and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.
Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is
punishable by any penalty lower than reclusion perpetua.31 To that extent the right is absolute.32
And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already
convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies,
and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such
conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires,
and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held:
. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be
derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is
such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first
paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7),
(8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of
freedom.
We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later
at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in
Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in
People vs. Dacudao, et al., 170 SCRA, 489, 495:
Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity
for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and
reputation of the accused, the weight of the evidence against him, the probability of the accused appearing
at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under
bond in other case. . . .
In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be
heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of
Rule 114 does not authorize any court to deny bail.
II.
It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor
and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after
publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal
Code by increasing the penalty for rebellion such that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. ––– Any person who promotes, maintains, or
The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the
heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua.
privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra.,
to wit:
Any person merely participating or executing the commands of others in a rebellion or insurrection shall
suffer the penalty of reclusion perpetua.
The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to
bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail
may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course xxx xxx xxx
thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the
success of government efforts to bring to an end the invasion, rebellion or insurrection.
This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is
not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who
15
is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to
publication of such laws a final sentence has been pronounced and the convict is serving the same.36 appear in court when their presence is required.

III.
We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009.
On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the
trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose
Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce
Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying, among
others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the
bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested
and detained them. The following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the
writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00
o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas
Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion
alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine
General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines,
New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government
through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code,
as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court,
National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and
respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against
them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a
member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz
and Concepcion covered by any, safe conduct pass issued by competent authorities.
3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We
issued a resolution reading as follows:
When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren
H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the
petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant
Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents,
with Solicitor General Ordoñez arguing for the respondents.
In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise
agreement that they have previously undertaken to submit.
Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar,
the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction
of the trial court, the Court ordered their immediate release.
Thereafter, the Court approved the foregoing manifestations and statements and required both parties to
SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on
official leave.
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly
signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoñez, Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows:
COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable
Tribunal respectfully manifest:
1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A.
Ordoñez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may
be preserved and human considerations may be called into play.
2. That in the conference both counsel agreed to the following terms of agreement:
a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose
Milo Concepcion will be immediately released but shall appear at the trial of the criminal case
for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926],
Regional Trial Court, National Capital Judicial Region) filed against them under their personal
recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having
custody over his person.
c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby
deemed recalled in view of formal manifestation before the Supreme Court that they will submit
themselves to the court having jurisdiction over their person.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement
3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the
reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas
to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record.
immediately.
4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present
Solicitor General Sedfrey Ordoñez, also in open Court, confirmed the foregoing statement made by manifestation in compliance with the resolution announced in court this morning.
petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection
will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that WHEREFORE, it is prayed that the petition for habeas corpus be dismissed.
no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas;
further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that
5. On 16 October 1986 We issued the following resolution:

16
 G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose
Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig.
Gen. Ramon Montaño and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated
October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo
Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which
states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn
by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear
at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886,
Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their
personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the
court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose
Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they
will submit themselves to the court having jurisdiction over their person and in view of the said agreement,
the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus
but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the
Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at
the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave.
It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the
trial of his criminal case, [he] has expressly waived his right to bail."37 Upon the other hand, private respondent asserts that this
claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of
the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this
Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the
matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private
respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail
on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but
final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation
and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing
else; it is not to be interpreted as waiver.
Interestingly, private respondent admits that:
"Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person
by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed,
Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)
He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional
right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise
deprived of his liberty."38
When the parties in G.R. No. 76009 stipulated that:
b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person.
they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual
confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of
the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over
their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and
court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused.
Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should
remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should
have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this
17
Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion,
a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that
only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released,
further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement.
In defining bail as:
. . . the security given for the release of a person in custody of the law, . . .
Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law"
than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure
his appearance at the trial.39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived
of liberty.40
Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right
to bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs,
or prejudicial to a third person with a right recognized by law.
Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage,
benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender,
by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever
deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an
act inconsistent with claiming it."41
As to what rights and privileges may be waived, the authority is settled:
. . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every
conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable
right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured
by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the
individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of
the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized
that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on
any public right, and without detriment to the community at large. . . .
Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be
waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes
on the rights of others, or would be against public policy or morals and the public interest may be waived.
While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be
waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some
of the constitutional rights created to secure personal liberty are subjects of waiver.42
In Commonwealth vs. Petrillo,43 it was held:
Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the
accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges.
Those of the first class cannot be waived; those of the second may be.
It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if
taken against his will."44
This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and
seizures;45 the right to counsel and to remain silent;46 and the right to be heard.47
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights.1âwphi1 Section 12(l) of
Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice
states:
. . . These rights cannot be waived except in writing and in the presence of counsel.
This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may
be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to
the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial
to a third person with a right recognized by law.
The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent.
WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People
of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo
Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE.
G.R. No. 115407 August 28, 1995
MIGUEL P. PADERANGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
REGALADO, J.:
The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November
24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by
petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on
said petitioner's right to be admitted to bail.
On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of
multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the
killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the
18
time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City,1 had initially
indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo,
Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the
spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was
apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up
to the present. 2
In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated
October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew
him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary
investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20,
1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family.3
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7,
1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick
F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant
to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in
said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as
a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M.
Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc
decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against
him.4
Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's
apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for
admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished
copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private
prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail.
Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State
Prosecution's Office appeared for the prosecution.5
As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his
counsel manifested that they were submitting custody over the person of their client to the local chapter president of
the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being
in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the
directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting
nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge.6
Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation
of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the
amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to
travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount
thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the
scheduled court hearings of the case.7
The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor
Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial
court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon
elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the
order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground
that they were tainted with grave abuse of discretion.8
Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the
custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had
voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime
punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was
recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the
prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail
contrary to the requirements of due process. Hence, this appeal.
Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al.,9 his filing of the
aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short,
for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of
the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the
accused and bring him within the custody of the law."
Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar
his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further
presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution
bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that
the special civil action for certiorari was filed in respondent court after an unjustifiable length of time.
On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for
petitioner.
1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the
law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions
specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his
conviction and yet secure his appearance at the trial.10 As bail is intended to obtain or secure one's provisional liberty,
the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful
arrest or voluntary surrender.11 As this Court has put it in a case "it would be incongruous to grant bail to one who is
free."12
The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an
accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his
personal appearance therein and compliance with the requirements therefor.13 Thus, in Feliciano vs. Pasicolan, etc.,
et al.,14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering
himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending
trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail.
As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of
their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking
his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed
against him as it is available to "all persons"15 where the offense is bailable. The rule is, of course, subject to the
condition or limitation that the applicant is in the custody of the law.16
On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a
warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation
to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to
the jurisdiction of the court by surrendering to the proper authorities.17 in this light, the ruling, vis-a-vis the facts in
Santiago vs. Vasquez, etc., et al.,18 should be explained.
In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt
Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail
Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she
19
sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having
placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings."
On the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the Sandiganbayan
authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in
view of her physical incapacity and as a matter of humane consideration.
When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over
her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily
surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said
court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the
Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier recognized such
jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to
its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot
be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary
surrender.
In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he
was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore,
be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which
attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed
to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court
which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely
by his submission to the custody of the person making the arrest.19 The latter mode may be exemplified by the so-
called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp
area.
It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to
the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby
Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to
leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific
whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would
have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then
incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement
or placing him under guard.
The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court
and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his
lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail
with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by
unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant
for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law
or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission
application for bail, and until the day of the hearing thereof.
At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which
facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual
recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering
custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter.20 In other
words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the
law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in
Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest
should the application therefore be denied.
2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo,
only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, the latter readily answered in the affirmative.
Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an
offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail,
The following exchanges bear this out:
which may be waived considering its personal nature21 and which, to repeat, arises from the time one is placed in the custody of
the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at
the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt.22 PROSECUTOR ERLINDO ABEJO:

Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released I was informed to appear in this case just now Your Honor.
on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense
or an offense punishable by reclusion perpetua or life imprisonment23 and the evidence of guilt is strong. Under said general rule,
upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same COURT:
after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule
114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to Where is your Chief of Office? Your office received a copy of the motion as early as
the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court,24 is required October 28. There is an element of urgency here.
with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or
not the evidence of guilt is strong for the provisional liberty of the applicant.25 Of course, the burden of proof is on the prosecution
to show that the evidence meets the required quantum.26 PROSECUTOR ABEJO:

Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a I am not aware of that, Your Honor, I was only informed just now. The one assigned
reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital
entitled as the accused to due process.27 If the prosecution is denied this opportunity, there would be a denial of procedural due attending to his sick son. I do not know about this but before I came I received an
process, as a consequence of which the court's order in respect of the motion or petition is void.28 At the hearing, the petitioner instruction from our Chief to relay to this court the stand of the office regarding the
can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal.29 When, motion to admit bail. That office is neither supporting nor opposing it and we are
eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the submitting to the sound discretion of the Honorable Court.
prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong.30 The court, though, cannot rely on
mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient COURT:
to establish the quantum of evidence that the law requires.31
Place that manifestation on record. For the record, Fiscal Abejo, would you like to
In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed formally enter your appearance in this matter?
Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of
State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the
case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution PROSECUTOR ABEJO:
now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the
application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution Yes, Your Honor. For the government, the Regional State Prosecutor's Office
was not afforded "reasonable time" to oppose that application for bail. represented by State Prosecutor Erlindo Abejo.

We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State COURT:
Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando
de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor
on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed By that manifestation do you want the Court to understand that in effect, at least, the
and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca prosecution is dispensing with the presentation of evidence to show that the guilt of
Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter the accused is strong, the denial . . .
their appearance as collaborating government prosecutors in said criminal case.32 It was in fact by virtue of this arrangement that
the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the PROSECUTOR ABEJO:
previous hearing in said case.33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the
Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on
November 5, 1992. I am amenable to that manifestation, Your Honor.

Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless COURT:
was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor
Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, Final inquiry. Is the Prosecution willing to submit the incident covered by this
duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the particular motion for resolution by this court?
application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was
that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence.
20
 PROSECUTOR ABEJO: of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court
long after trial on the merits of the case had ensued in the court below with the active participation of prosecution
lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari
Yes, Your Honor.
should not be instituted beyond a period of the three months,38 the same to be reckoned by taking into account the
duration of time that had expired from the commission of the acts complained to annul the same.39
COURT:
ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993,
Without presenting any further evidence? annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of
Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of
said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court
PROSECUTOR ABEJO:
granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED.

Yes, Your Honor.34

G.R. No. 127126 September 17, 1998

It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, People of the Philippines, plaintiff-appellee,
had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were vs.
"neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was
Rodrigo Calma y Sacdalan, accused-appellant.
"submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The
prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of
the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such
was the position of the prosecution.
PER CURIAM:
3. In Herras Teehankee vs. Director of Prisons,35 it was stressed that where the trial court has reasons to believe that
the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a
This Court repeats: men who rape children, worse, their own daughters, are "filthier than the slime where they belong. Whatever
gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as
punishment is imposed on them can never expiate their loathsome offense, for which forgiveness itself from a mortal court, at
the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re:
least, would be a sin".1
First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice;
Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas,
etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should There is no fathoming the deluge of rape cases, often involving children, that has swamped the Court. But this particular case is
nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter by far, the most bizarre. Not just one but three young girls have been left precipitately stigmatized by the bestial violence
is really not contesting the bail application. perpetrated on them by their own father. The very person who should have protected them with his life, destroyed their. What
strikes this Court as extremely perverse is that he spared no one, not even his daughter of the tenderest age of 5.
No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards
its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of Accused-appellant Rodrigo Calma was charged with two (2) counts of Rape under Art. 335 of the Revised Penal Code, as amended
November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural by Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of Lasciviousness under Art. 336 of the Revised Penal Code in
rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety relation to Sec. 5(b) of Art. III of Republic Act No. 7610 2, before the Regional Trial Court, 3rd Judicial Region, Malolos Bulacan,
of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary Branch 143 in the following three (3) separate Informations:
of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that
petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the
In Crim. Case No. 752-M-96, for Rape:
present, petitioner has ever committed any violation of the conditions of his bail.

The undersigned upon the prior sworn complaint of the offended party, fourteen (14) year old minor
As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period
Annalyn Calma, accuses RODRIGO CALMA Y SACDALAN of Rape, defined and penalized under Art.
of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of
335 of the Revised Penal Code as amended by Sec. 11 of Republic Act [No.] 7659, committed as follows:
the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from
said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such
evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan and
circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the within the jurisdiction of this Honorable Court, the above-named accused, being the
application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State biological father of the offended party Annalyn Calma, with lewd designs and by
Prosecutor was authorized to appear for the People. means of threat and violence by arming himself with bladed weapon, did then and
there willfully, unlawfully and feloniously lie and had sexual intercourse with private
complainant Annalyn Calma against her will and consent.
4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed
before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special
civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred CONTRARY TO LAW.4
eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution
21
In Crim. Case No. 752-M-96, also for Rape: A. It was already night time, madam.

The undersigned upon the prior sworn complaint of the offended party, ten (10) year old minor Roselyn xxx xxx xxx
Calma, assisted by her mother Myrna Calma y Ignacio, accuses RODRIGO CALMA Y SACDALAN of
Rape, defined and penalized under Art. 335 of the Revised Penal Code as amended by Sec. 11 of Republic
Q. And where did this incident happened [sic]?
Act [No.] 7659, committed as follows:

A. In our bedroom, madam.

That in between the period may 1995 to March 8, 1996, in Marilao, Bulacan and
within the jurisdiction of this Honorable Court, the above-named accused, being the
biological father of the offended party Roselyn Calma, with lewd designs, did then xxx xxx xxx
and there willfully, unlawfully and feloniously lie and had sexual intercourse with
private complainant Roselyn Calma against her will and consent.
Q. When you said that your father removed your panty and your short[s] and your
father was only wearing his short[s] at that time, what did your father do to you if
CONTRARY TO LAW.5 any?

In Crim. Case No. 754-M-96, for Acts of Lasciviousness: A. He asked me to lie down on the bed, madam.

The undersigned upon the prior sworn complaint of Myrna Calma y Ignacio in behalf of her Four (4) year Q. And when you laid down on the bed, what happened next?
old daughter Irene Calma, the offended party, accuses RODRIGO CALMA Y SACDALAN of ACTS OF
LASCIVIOUSNESS defined and penalized under Art. 336 of the Revised Penal Code, in relation to Section
5(b), Art. III of Republic Act [No.] 7610, committed as follows: A. He approached me pointing the icepick towards me, sir.

xxx xxx xxx

That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan and with
the jurisdiction of this Honorable Court, the above-named accused, by taking
advantage of his natural daughter, Four (4) year old Irene Calma, did then and there Q. And then when he approached you, what happened next?
wilfully, unlawfully and feloniously with lewd designs, touched the private parts of
the above-stated offended party.
A. He started to kiss me on the different parts of my body, madam.

CONTRARY TO LAW.6
Q. Specifically what part of your body did he kiss first?

Accused-appellant pleaded not guilty to the charges.

A. My vagina, madam.

On May 31, 1996, the three cases were jointly tried upon motion of the prosecution.
xxx xxx xxx

The evidence of the prosecution established that between May 1995 and March 8, 1996, accused-appellant forced himself on his
two daughters, namely, Annalyn and Roselyn, born on July 11, 1981 7 and December 28, 1985 8, respectively. During the same Q. Did you not resist or cry or ask him the reason why he was doing that to you?
period, accused-appellant inserted his finger into sex organ of his youngest daughter, Irene, born on June 29, 1991 9.
A. I asked him, madam.
At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene, respectively, testified thus:
Q. And what was his answer?
Annalyn on the witness stand:
A. None, madam.
A. One day by the middle of May, 1995, my father arrived home drank [sic] and he
forced me to undress myself while carrying an icepick. xxx xxx xxx

xxx xxx xxx Q. And after your father kissed your whole body, your breast and including your
vagina that was all he did to you?
Q. But can you tell us the time?
A. On that particular day, yes madam on that day only.
22
xxx xxx xxx A. He ordered me or instructed me to undress myself, madam.

Q. After that first incident, you did not tell anyone or anybody your mother and Q. Did you actually remove your clothes?
brother and your sister what your father did to you?
A. Yes, madam because I was frightened then.
A. I did not, sir.
Q. How about your father, what happened to his clothes then?
Q. Why?
A. He likewise removed his short pants, madam.
A. Because at the very start, he had already threatened us and he told us that he would
kill our mother in our presence, madam.
Q. So, both of you were totally naked?

Q. And after that first incident in the middle of May, 1995, this act was never repeated
A. Yes, madam.
again?

Q. After you were both totally naked, did [sic] you kindly tell us what happened next?
A. It was repeated again, madam.

A. He instructed me to lie down on [the] bed, madam.

Q. How many times?

Q. After you laid down on the [the] bed, what happened next?
A. For many more times, madam.

A. He placed himself on top of me, madam.

xxx xxx xxx

Q. And when he laid on top of you, do you recall what happened next?
A. After a week time [sic] or something like that in as much as he seem[s] not to be
satisfied he inserted his sex organ [in]to mine, madam.
A. Yes, madam.
Q. Can you recall the first time your father inserted his penis inside your private parts?
Q. What was that?
A. No more, madam.
A. He was making a push and pull motion, madam.
Q. You can not recall the exact date?
xxx xxx xxx
A. I can no longer recall, madam.
Q. When you say that he was likewise making this push up motion, did you notice
anything else?
xxx xxx xxx

A. He inserted his penis on [sic] my vagina, madam.

Q. Now, when you were left alone with your father, do you recall what happened if
any?
Q. How do you know it was his penis that was inserted on [sic] your vagina?
A. Yes, madam.
A. Because I saw it, madam.
xxx xxx xxx
Q. When he inserted his penis inside your vagina, what did you feel?
A. First he took [sic] our main door and then he ordered me to get inside our bedroom,
madam. A. I cried because it was painful, madam.

Q. After he instructed you to get inside your bedroom, what happened next? Q. Did you resist or fought [sic] back to [sic] what your father was doing to you?
23
xxx xxx xxx A. As I have stated a while ago, he was threatening us. He was threatening me and
he further stated that will include my mother and even my other sister and brother,
madam.
SP BALAWAG:

Q. You stated earlier that this sexual abuse was repeatedly done by your father?
Q. What did you do if any?

A. Yes, madam.
A. I cried and cried and when I was struggling to free myself, he pointed again the
icepick on [sic] me, madam.
xxx xxx xxx
Q. And can you tell us for how long did this push up movements [which] your father
was doing while his penis was inserted in your vagina lasted [sic].? A. When my mother was not yet around whenever he likes it.

A. For less than five (5) minutes, madam. xxx xxx xxx

Q. After that what happened? Q. During the time that you have or you were repeated raped or your father have [sic]
sexual intercourse with you, will you kindly tell us the positions your father did?
A. He stood up and seated himself on top of the bed, madam.
A. Sometimes I am lying on my back. Sometimes I am on my side that is all.
Q. What did you see when your father suddenly stood [sic] up and sit on top of the
bed? xxx xxx xxx

xxx xxx xxx SP BALAWAG:

A. He took hold and played with his sex organ or penis, madam. Q. In all those instances that you were repeatedly abused by your father
notwithstanding the return of your mother, you never told anyone what was [sic] your
father was doing to you?
Q. After playing [with] his sex organ, what happened next?

A. I did not, madam.

A. Something came out of his penis, madam.

Q. Why?
Q. Would you kindly describe to us what you saw coming our from his penis?

A. Because I am afraid of his threat and I love very much my family.

A. A sticky substance, madam.

xxx xxx xxx

Q. Why do you know that this sticky substance came out from the penis of your
father?
Q. Now, madam witness, do you recall the last time when your father sexually abused
you?
A. Because he was showing that to me, madam. He even told me that substance was
the one introducing [sic] baby, madam.
A. Yes, madam.
xxx xxx xxx
Q. When was that?
Q. And after this first sexual abuse committed by your father on you, you never
relayed this incident to anyone? A. March 3, Sunday in the morning 1996, madam.

A. Yes, madam I did not. Q. In other words, madam witness since the middle of May, 1995, up to March 3,
1996, this sexual abuse committed by your father lasted up to one (1) year?
Q. Why was this?
24
 A. Yes, madam. 10 A. My right leg, madam.

Roselyn on the witness stand: Q. In other words, while you were lying down, the accused lifted your right leg and
then he went on top of you?
Q. Can you tell us, Madam Witness, what grade were you in and how old were you
at the time you were first sexually molested by your father? A. Yes, madam.

A. I was then in Grade 2 and I was only 8 years old then, madam. xxx xxx xxx

xxx xxx xxx PROS. BALAUAG:

Q. In other words, Madam Witness, the first time you were sexually abused by your Q. What happened next after your father laid on top of you?
father, you were left alone with him?
A. He was actually making a push and full [sic] motions [sic] (kinakabayo).
A. Yes, madam.
xxx xxx xxx
Q. And you also mentioned earlier that you were first sexually abused by your father
in your living room, can you tell us who brought you there in the living room?
PROS. BALAUAG:

A. It was he, madam.

Q. Now, after your father went on top of you, what did he do next, if any and made
[sic] that "kinakabayo"?
xxx xxx xxx
A. He pulled out his sex organ and then played with it, madam.
Q. Now, when your father or the accused led you in the living room of your house
alone and you were alone with him, can you recall what happened, if any?
Q. Where did he pulled [sic] out his sex organ?

A. First, he instructed me to remove my shorts but I didn't want and what he did is
A. From my sex organ, madam.
that he pointed an ice pick to [sic] me, madam.

Q. In other words, madam Witness, your father inserted his sex organ or penis in your
xxx xxx xxx
vagina?

Q. When you refused at first to remove your shorts and then the accused pointed an
A. Yes, madam.
ice pick at you, can you recall what happened next?

Q. Can you tell what you felt at that time while the penis of your father was inserted
A. It was he who removed my shorts, madam.
in your vagina?

Q. In what particular part of pour body was the ice pick pointed?
A. It was painful, madam.

A. On my neck, madam. . . .
Q. Did you not tell him about it?

Q. After your father removed your shorts, what happened next, if any?
A. I told him about that, madam.

A. He brought out his sex organ from his short, he lifted up one of my feet and make
Q. What was his responds [sic]?
[sic] me lie down on my back and he placed himself on top of me, madam.

A. None, madam.
Q. What part of your leg was raised at that time?

25
xxx xxx xxx A. The same as in the first occasion when I was abused by my father. He first brought
out his sex organ from his shorts and then allowed me to lie down on my back, then
raised my right leg and then he inserted his sex organ to [six] my sex organ, madam.
Q. After your father pulled out his sex organ or his penis, can you recall what
happened next or what did he do with it, if any?
xxx xxx xxx
A. After my father had pulled out his sex organ from my sex organ he played with it
and something whity [sic] substance came out, madam. Q. When was that, the last time you were sexually abused by your father?

Q. Did you actually see that whity [sic] substance coming out from your father's A. March 8, 1996, madam, because after that date it was then the birthday of my
penis? father.

A. Yes, madam, because he was then in front of me. Q In other words, the birthday of the accused is March 9.

xxx xxx xxx A. Yes, madam.

Q. Now, did you not tell anyone of what had happened to you? xxx xxx xxx

A. I did not, madam. A. I was about to place my bag inside that bedroom and I have to change clothes
while my father followed me inside.
Q. Why not, madam witness?
Q. Madam Witness, where did you came [sic] from on that particular date?
A. I am afraid, madam, because he told me that if I do so, he would kill my mother.
A. I came from school, madam.
Q. Now, the second time you were sexually abused by your father, can you tell us
where did it happen? Q. When your father followed you inside the bedroom, can you recall what happened
next, if any?
A. In the same hut, madam.
A. Yes, madam.
Q. In what particular portion of the house?
Q. What happened?
A. Also, in the living room, madam.
A. He instructed me to lie down on my back and instructed me further to remove my
shorts, madam.
xxx xxx xxx

Q. Did you obey his orders?

Q. Now, you mentioned earlier that the second time you were sexually abused by
your father, it happened in the living room, can you tell us what your father did to
you at that time? A. No madam, I did not.

A. The same as in the first occasion, he instructed me to remove my clothes, madam. Q. What happened next when you refused to removed [sic] your shorts?

Q. In other words, madam witness, what you are trying to say to us right now was A. He pointed an ice pick to [sic] me, madam.
that the second time you were sexually abused by your father, it was like the first
incident when you were sexually abused?
Q. The same ice pick he pointed at you on the first occasion you were sexually abused
by your father?
A. Yes, madam.
A. No madam, it is different.
xxx xxx xxx

26
 Q. How can you tell that it was a different ice pick that he used? Q. Eh, si Papa, mahal mo rin ba?

A. I said that it was different ice pick because the first ice pick he used on me before, A. Hindi na po.
I kept it away, so what he did, he made another ice pick which is quite longer.
Q. Bakit hindi mo na mahal si Papa?
Q. Did you actually see your father making that particular ice pick?
A. Kasi po ang kamay niya ay pinapasok sa penching ko.
A. Yes, madam.
Q. Pakituro mo nga kung ano 'yong sinasabi mong penching?
xxx xxx xxx
AT THIS JUNCTURE, THE WITNESS IS CRYING AND WITNESS [IS] TOUCHING HER SEX
Q. Now, after your father placed some oil in [sic] his penis, what did he do next, if ORGAN.
he did anything?
Q. Ano 'yong kamay na ipinapasok doon sa penching mo, sabihin mo nga anak kung
A. He lifted again one of my legs and then placed himself on top of me, madam. ano 'yon? Nasaan 'yong daliring sinasabi mo, ituro mo kung anong daliri and ipinasok
ng iyong Papa sa penching mo?
Q. In other words, madam witness, the third time you were sexually abused by your
father, he lifted again your right legs [sic] but this time he put some oil in [sic] it WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER.
before he inserted it in your vagina?
Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa penching mo?
A. Yes, madam.
A. Nasa kama po.
Q. And after inserting his penis inside your vagina, what happened next, if any?
Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Papa 'yong daliri niya sa
A. He removed his sex organ or pulled out his sex organ and then played with it and penching mo? Nasaan ka?
sticky substance came out of it. 11
A. Nasa amin po.
Irene on the witness stand:
Q. Saan 'yon amin na sinasabi mo, Irene saan anak?
PROS. AGARAN:
PROS. AGARAN: The witness is now crying, your Honor.
Q. Irene, kilala mo ba si Mama?
ATTY. JOSON: Scratching only, your Honor.
A. Opo.
PROS. AGARAN:
xxx xxx xxx
Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano ang nararamdaman mo?
Q. Si Papa kilala mo rin?
A. Masakit po.
A. Opo.
Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo, ano pa ang ginagawa sa
xxx xxx xxx iyo?

Q. Irene, mahal mo ba si Mama? A. No answer.

A. Opo. PROS. AGARAN: She refused to answer, your Honor, but she kept on crying.

27
COURT: Q. Ano ang sinabi mo kay Ate Roselyn?

Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo. PROS. AGARAN: The witness refused to answer, your Honor. That will be all for
the witness, your Honor.
PROS. AGARAN:
COURT:
Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo ang pagpasok sa
penching mo? Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa penching mo?

A. Wala po. A. WITNESS POINTING TO A PERSON IN THE COURTROOM WHO STOOD

UP AND GAVE HIS NAME AS RODRIGO CALMA.
Q. Kahit kanino?
PROS. AGARAN:
A. Wala po.
Q. Sino siya?
Q. Kay Mama, hindi mo kinuwento kay Mama?
A. Papa ko.
A. Hindi po.
COURT: Cross?
Q. Bakit hindi mo kinuwento kay Mama?
ATTY. JOSON: Yes, your Honor. With the kind permission of this Honorable Court.
A. Eh, wala siya.
COURT: Proceed.
Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya sa penching mo?
ATTY. JOSON:
A. Kina Lola po.
Q. Irene, is it not a fact that your mother and your father frequently quarrel with each
other?
Q. Hindi na ha bumalik si Mama sa bahay?

A. Yes, sir.
A. Bumalik po.

Q. And in fact, because of that frequent trouble your mother was angry [sic] to your
Q. Eh, bakit hindi mo ikinuwento?
father?

A. Gabi na po.
A. Yes, sir.

Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na?

Q. And because your mother was angry she told you to testify against your father?

A. Opo.
PROS. AGARAN: Your Honor, at her age she is incompetent to testify on those
matters.
Q. Wala kang talagang pinagkwentuhan?
COURT: Let the witness answer.
A. Wala po.
A. No, sir.
Q. Hindi mo ikinuwento maski na kina Ate?

A. Kay Roselyn po.

28
 Q. Considering that your mother did not instructed [sic] you to file action against
your father, my question to you Irene is, who is the person who told you that
something wrong was done to you by your father?
A. None, sir.
COURT:
Q. Di ba natutulog ka nuong ilagay ang kamay niya sa penching mo?
A. No, your Honor.
Q. Anong naramdaman mo nong ilagay iyon?
A. Painful, your Honor.
Q. Ano pa?
No answer.
ATTY. JOSON: No further question, your Honor. 12
Accused-appellant denied his daughters' accusations. He charged that Myrna Ignacio, his common law wife and mother of his
children, coached his daughters to lie. He claimed that he had seriously hurt her in the past, twice by electrocution on suspicion of
infidelity. He also accused her of using the criminal cases to force him to waive his ownership rights over their house and lot in
her favor.
Seeking to help accused-appellant, his mother, Catalina Calma, his neighbor, Gloria Ceraus, his mother's laundrywoman, Eugenia
Lontoc, his sister-in-law, Lolita Calma, family friend, Rosalie Ofrecio, and a confidante of Annalyn, Larry Laurora, attested to the
close family ties of the Calmas. They testified that accused-appellant's daughters, especially Annalyn, showed much affection
towards their father. Catalina Calma, Lolita Calma and Larry Laurora even insinuated that Annalyn was in love with her father
and was seducing him.
On September 25, 1996, the trial court convicted the accused on all three (3) charges. It ruled:
The defense's position that the charges were fabricated and that the private complainants were coached is
untenable. A teenage unmarried lass would not ordinarily file a rape complaint against anybody much less
her own father if it were not true (People v. Matrimonio, 215 SCRA 613). A daughter, especially one of
tender age would not accuse her own father of this heinous crime had she really not have been aggrieved
(People v. Dusohan, 227 SCRA 87; People v. Magpayo, 226 SCRA 13). In their childhood innocence and
naivete they could not have concocted the story of how they were wantonly ravished and sexually assaulted
(see People v. Magallanes, 218 SCRA 109; People v. Joya, 227 SCRA 9).
Neither is there no [sic] merit in the accused's argument that the abuses if true could not have been endured
by the private complainants for almost a year without telling anyone. It is not uncommon for young girls to
conceal for sometime the assaults on their virtue because of the rapist's threats on their lives. Delay or
vaccilation in making a criminal accusation does not necessarily impair the credibility of the witness if such
delay is satisfactorily explained (People v. Errojo, 229 SCRA 49 . . .). The fact that there was no outcry
from the offended party is immaterial in the rape of a child below twelve years old (People v. Ylarde, 224
29
SCRA 405). Also, the precise date when complainant was sexually abused is not an essential element of the
offense (People v. Ocampo, 206 SCRA 223).
The defense also argues that there was no external evidence of the use of force. In the case of People v.
Coloma it has held that "previous passivity of a daughter in allowing her father to have carnal knowledge
of her for eight (8) years is not a valid defense against unconsented intercourse. The kind of force or
violence, threat or intimidation as between father and daughter need not be of such nature and degree as
would be required in other cases, for the father in this particular instance exercises strong moral and physical
influence and control over his daughter (People v. Coloma, 222 SCRA 255). In a rape case committed by a
father against his own daughter the father's moral ascendancy and influence over the latter substitutes for
violence and intimidation (People v. Matrimonio, 215 SCRA 613).
It was held in People v. Ignacio, 233 SCRA 1, that courts may take judicial notice of the interesting fact that
among poor couples with big families living in small quarters, copulation does not seem to be a problem
despite the presence of other persons around them. Rape can be committed even if the victim is sleeping on
the same bed with others (People v. Villorente, 210 SCRA 647). Thus it was not impossible for the accused
to commit the abuses on his daughters simply because they were sleeping on the same bed.
It was also argues [sic] that the extent of the injuries sustained by the two younger complainants are not
enough to support the charges. Suffice it to say that healed lacerations in the hymen do not negate rape;
neither does the absence of spermatozoa in the vaginal canal (People v. Liquiran, 228 SCRA 62; People v.
Magallanes, 218 SCRA 109). Even if there were no lacerations of the hymen this fact alone does not
necessarily mean that there was no rape. The merest introduction of the male organ into the labia of the
pudendum is sufficient. The mere penetration of the penis by the entry thereof into the labia majora of the
female organ even without rupture of the hymen suffices to warrant a conviction for rape (People v. Sanchez,
250 SCRA 14). Annalyn and Roselyn testified that there was penetration and that it was very painful. The
pain could be nothing but the result of penile penetration, sufficient to constitute rape (People v. Sanchez,
supra).
The mother of the accused, as well as his sister-in-law imply (sic) that an amorous relationship could exist
between the accused and Annalyn, and such is one of the theories of the defense. However, where the
accused adopted the theory that the victim consented to his sexual desires, the sexual act itself is deemed
admitted except as to consent [but] . . . as contrary evidence showed the victim sustained physical injuries
consistent with her claim that she was sexually abused without her consent (People v. Saluna, 226 SCRA
447). The charge that the complainant in a rape case has loose morals must be supported by strong evidence
(People v. Coloma, 222 SCRA 255). Such a claim could only lead this court to believe that the defense
would try to exculpate the accused by blaming the victim, which this court is not inclined to do.
The accused imputes false motive in the filing of these case[s] on the part of Myrna. It is unnatural for a
parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment
and even stigma (People v. Ching, 240 SCRA 267; People v. Ignacio, 233 SCRA 1). No mother would stoop
so low as to subject her daughter to physical hardship and shame concommittant to a rape prosecution just
to assuage her own hurt feelings (People v. Rejano, 237 SCRA 627).
A violation of a woman's chastity becomes doubly repulsive where the outrage is perpetrated on one's own
flesh and blood, for the culprit is reduced to a level lower than a beast (People v. Dusohan, 227 SCRA 87).
Because of the acts of the accused the private complainants have been denied their right to grow up and
discover the wonders of womanhood in the natural way, and an award of moral indemnification in the
amount of P50,000.00 is proper (People v. Escoto, 229 SCRA 430; People v. Mejorada, 224 SCRA 857),
as well as an award of exemplary damages as correction for the public good (People v. Matrimonio, 215
SCRA 613), in the amount of P25,000.00. 13
Accordingly, accused-appellant was meted out the following penalties:
 WHEREFORE, premises considered, judgment is hereby rendered: SP BALAUAG:

In Criminal Case No. 752-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the crime of rape and
sentencing him to the penalty of death to be carried out in accordance with law; and to indemnify Annalyn
Calma in the amount of P50,000.00, to pay her the amount of P50,000.00 as moral damages, the amount of
P25,000.00 as exemplary damages;
In Criminal Case No. 753-M-96
Q. You stated that you conducted a physical examination on the person of Annalyn
Calma on May 3, 1996, is [sic] the findings of your examination was [sic] also
reduced in writing?
A. Yes, madam.
Q. I am showing to you medico legal report No. M-647-96, what relation has this
medico legal report to the one you stated you executed?

Finding accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the crime of rape and A. This is the original medico legal report No. M-647-96 which I prepared.
sentencing him to the penalty of death to be carried out in accordance with law; and to indemnify Roselyn
Calma in the amount of P50,000.00, to pay her the amount of P50,000.00 as moral damages and the amount
xxx xxx xxx
of P25,000.00 as exemplary damages; and

In Criminal Case No. 754-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable doubt of the [crime of] acts of
lasciviousness under Article 336 of the Revised Penal Code and R.A. [No.] 7610, and sentencing him to the
penalty of reclusion temporal in its medium period, to indemnify Irene Calma in the amount of P50,000.00,
to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages.
SO ORDERED. 14
On automatic appeal because of its twin sentences imposing the death penalty, the foregoing decision of the trial court is now
before us.
In his Brief dated October 21, 1997, accused-appellant interposed a single error, thus:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIMES CHARGED
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILTY BEYOND REASONABLE
DOUBT. 15
We find on record overwhelming evidence of the guilty of accused appellant. The testimony of the three victims, his own daughters,
withstood the test of cross-examination. They spontaneously, clearly and credibly spoke of the details of their defilement. The
defense did not dispute the time, the place, the manner and the frequency of the sexual abuses. Neither did the defense show that
their hymenal lacerations, as found by Dr. Jesusa Nieves Vergara, the medico-legal officer who examined them, were the results
of other causes. Dr. Vergara testified, thus:
Q. We are marking the same as our Exhibit K, and that the signature of Dr. Vergara
be bracketed and be marked as Exhibit K-1. . . . You stated in your genital findings
that "on separating the same disclosed an elastic, fleshy-type hymen with shallow
healed lacerations at 3 and 5 o'clock and deep healed lacerations at 8 and 9 o'clock
positions." [I]n layman's language, can you tell us wat this [sic] genital findings
means [sic].
A. The numbers here, 3, 5, 8 and 9 o'clock will just indicate the positions of the
lacerations. So, since the hymen is circular in appearance, it is being correlated to the
face of the watch when we say the laceration is 3:00 o'clock, it means that the
laceration or it occupies the number in the clock. The same goes with the 5, 8 and 9
o'clock. By shallow laceration, it means that it does not exceed more than 50% or
more than half of the width of the hymen and by deep laceration, it exceed [sic] more
than 50 % or more than 1/2 of the width of the hymen and by healed laceration, it
means that the edges of the laceration has already healed showing reaction like
swelling, redness or contusion on the area.
xxx xxx xxx
SP Balauag:
Q. You concluded in your conclusion that the subject is in non-virgin state physically.
Can you kindly explain how you were able to conclude that the subject is in a non-
virgin state?

A. The findings in the hymen is [sic] a healing laceration.

xxx xxx xxx

xxx xxx xxx

Q. At around 11:30 in the morning of that day, do you recall having physically
examine [sic] the person[s] of Roselyn Calma, Irene Calma and Annalyn Calma?
Q. Dr., can you tell us what might have cause [sic] this laceration in the hymen you
found on [sic] Annalyn Calma?
A. Yes, sir.

A. Forcible entry of a hard blunt object.

xxx xxx xxx

30
xxx xxx xxx A. Forcible entry of a hard blunt object which can be a form of an erected sexual
organ.
COURT:
Q. On May 3, 1996, do you remember having physically examine [sic] the person of
Irene Calma?
xxx xxx xxx

A. Yes, madam.
Q. What was the cause of your conclusion or findings that the victim is no longer a
virgin?
Q. Was [sic] your findings after you physically examine [sic] the person of Irene
Calma reduced into writing?
A. Forcible entry of a hard blunt object can be caused by an insertion of a male sex
organ.
A. Yes, madam.
SP BALAUAG:
xxx xxx xxx
Q. On May 6, 1996, did you examine the person of Rosallyn [sic] Calma?
Q. I forgot, we are marking the findings of the doctor as Exhibit L-3, your Honor for
purposes of identification we are marking the medico legal report 649-M-96 as our
A. Yes, madam.
Exhibit M and the signature over the typewritten name Dr. Jesusa Vergara be
bracketed and he marked as our Exhibit M-1. . . . Doctor, in this [sic] findings
Q. After conducting your physical examination was [sic] your findings reduced into regarding the four year old private complainant Irene Calma you stated in your
writing? findings that there are lacerations found in the hymen of the four (4) year old child,
can you tell us in layman's language what this means?
A. Yes, madam.
A. In this particular case, there were two (2) lacerations noted on the hymen of the
victim. [B]oth were healing lacerations one shallow healing laceration 3 o'clock and
xxx xxx xxx
another, deep laceration position 3 o'clock.

Q. [Let] the signature over the typewritten name Jesusa Vergara be bracketed and be Q. Can you tell us the basis of your conclusion that the victim Irene Calma is also
marked as our Exhibit L-1 . . . . You stated in your findings that on the genital [area]:
[in] a non-virgin state?

There is absence of pubic hair. Labia majora are full, convex and gaping with th [sic] pinkish labia minora
presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with shallow healed
lacerations at 3 and 9 o'clock positions. External vaginal origice [sic] admits tip of the examiner's smallest
finger." Now in layman's language, Doctor, can you tell us what this [sic] gental findings means [sic]?
A. That I found two (2) lacerations on the hymen, positions 3 and 9 o'clock positions.
[B]oth lacerations were shallow healed lacerations.
Q. Now, Doctor, there appears a conclusion [where] you said [in the] medico legal
report that the subject is in a non-virgin state physically, can you tell us the basis of
your conclusion?
A. The basis for saying this is my findings on the hymen revealing the healed
lacerations.
A. My basis for saying this [is] the findings on the hymen revealing lacerations.
Q. In this particular case where the victim or the private complainant is four years
old, will you tell us what might have caused the laceration you found in the hymen
of Irene Calma?
A. Forcible entry of a hard blunt object. 16
At most, during cross-examination, the defense got Dr. Vergara to concede that hymenal lacerations can also be caused
by a fall on a sharp object. The defense, however, failed to establish that the three victims had, on specific occasions,
met an accident of that nature. Thus goes the cross-examination of Dr. Vergara:
ATTY. JOSON:

Q. This laceration you found on the hymen [of] the private complainant Rosallyn Q. Madam witness, . . . you stated that that [sic] . . . the healed laceration might be
[sic] Calma, can yoy [sic] inform this Honorable Court what or [sic] might have cause caused by a blunt instrument or an erected adult penis. Now, madam witness, aside
[sic] the said lacerations? from adult male penis, what other factor that might caused [sic] lacerations in the
hymen which falls under the category of a hard blund [sic] object?

31
 A. Insertion of the finger provided that diameter of the finger is greater than the A. For the exact date, I can not determine but I can only approximate, but my findings
diameter of the opening of the vagina, [sir]. are compatible per their allegations that the incident happened a year [before my
examination]. 17
Q. Can it be the finger of the subject person herself?
Accused-appellant next submits that the evidence of the prosecution should not be given credence by this Court because
of their inherent improbabilities. He pleads this Court to consider his daughters to have lied under oath because:
I withdraw that.

1. Annalyn and Roselyn both testified that he always withdrew his penis and ejaculated outside them, but
xxx xxx xxx
such self-control and willpower is impossible for a man who lusted even for his own daughters.18

Q. In fact, aside from the erected male penis, finger, what are the other factors or
2. His daughters did not behave like rape victims. They continued to be close and affectionate towards him,
things that might cause laceration in the hymen?
hugging and kissing him in public. They always slept together in one room. They continuously attended
their classes and even got high grades. 19
A. A fall against a hard sharp object, sir.
3. His daughters should have died or suffered some serious physical injury if it were true that his penis
Q. Doctor, is it possible considering the young age of the subject person by strenuous forcefully penetrated their vaginas. 20
exercise and activities may the same caused [sic] laceration of the hymen?
All these, accused-appellant submits, cast reasonable doubt on his guilt.
A. No, sir there has to be a direct trauma on the hymen, sir.
The Law presumes that an accused is innocent and this presumption stands until it is overturned by competent and credible proof.
Q. How about riding on a bicycle? It is incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt. The reasonable doubt should
necessarily pertain to the facts constitutive of the crime charged. 21 Discrepancies that touch on significant facts are crucial on the
guilt or innocence of an accused. 22 Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements
A. No, sir. of the crime are not grounds for acquittal. 23 The rule of falsus in uno, falsus in omnibus has never been regarded as positive,
mandatory, or inflexible. 24
Q. Doctor, you also stated healing laceration, from the time of the examination what
is the probable time or what is the period of time wherein you can still consider a Surmises and conjecture have no place in a judicial and are especially anathema in a criminal prosecution. 25 In a criminal
laceration a healing laceration? prosecution a reasonable doubt can be created by many things but to be sufficient to prevent a conviction, it must arise from the
evidence adduced or from the lack of evidence, and can arise from no other legitimate source. 26 While no test definitively
A. Less than seven (7) days per examination, sir. determines which is and which is not considered reasonable doubt under the law, it must necessarily involve genuine and
irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. It
is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. 27 It should
Q. To be considered a healed laceration, the examination must be conducted within not be vague, speculative or whimsical, but intelligent, reasonable and impartial and based on a careful examination and conscious
seven days? consideration of all the evidence in the case. 28 A reasonable doubt is not such doubt as any man may start by questioning for the
sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question
A. More than seven (7) days. any conclusion derived from testimony, but such questioning is not what is reasonable doubt. Rather, it is that state of the case
which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he
cannot say that he feels an abiding conviction to a moral certainly of the truth of the charge. 29 Absolute certainty is not demanded
Q. Healing laceration? by the law to convict of any criminal charge but moral certainty is required, and this certainty must attend every proposition of
proof requisite to constitute the offense. 30 Absolute, mathematical, or metaphysical certainty is not essential, and besides, in
A. For healed laceration, it should be more than seven (7) days, for heal[ing] judicial investigation, it is wholly unattainable. Moral certainty is all that can be required.
lacerations less than seven (7) days.
In the instant case, accused-appellant exhorts this court to consider the lack of internal ejaculation and the absence of any injury
xxx xxx xxx on the part of the victims, which were testified to by the prosecution witnesses themselves, and their continuous show of affection
towards their father, as testified to by the defense witnesses, as indicia of reasonable doubt warranting his acquittal. They lied,
argues accused-appellant, because their testimony is improbable, if not impossible, and their affectionate behavior towards him,
COURT: their alleged rapist, was a contradiction in terms.

Q. Doctor, can you determine Dr. when was the actual date wherein the victim lost We agree with the Solicitor General that these contentions are conjectural. On the charge that the narrations of the victims were
their virginity? fabricated for the purpose of evading the questions as why no spermatozoa was found in them during the physical examinations
and why they did not get pregnant, the Solicitor General correctly noted that Annalyn and Roselyn were last sexually abused by
appellant in March 1996 while the physical examination were conducted on May 3, 1996 or almost two (2) months thereafter.

32
Hence, even assuming that he ejaculated while they had intercourse, the spermatozoa would have been washed off by May 3, 1996, In Criminal Case No. 753-M-96
not to mention that the lifetime of spermatozoa definitely does not run to two (2) months. In any event, the presence or absence of
spermatozoa in the vagina is not even determinative of the commission of rape because a sperm test is not a sine qua non for the
To the penalty of death to be carried out in accordance with law; and to indemnify Roselyn Calma in the
successful prosecution of a rape case. 31 The important element in rape is penetration of the pudenda and not emission of seminal
amount of P75,000.00, and to pay her the amount of P50,000.00 as moral damages and P25,000.00 as
fluid. 32
exemplary damages; and

The Court is also not impressed by accused-appellant's claim that he could not have raped Annalyn and Roselyn because they
In Criminal Case No. 754-M-96
continued to be close to him, i.e., they still hugged and kissed him in public and continued to sleep with him in one room. They
were also allegedly able to continue attending their classes and obtain good grades at the time they were supposedly molested by
him. To the penalty of reclusion temporal in its medium period; and to indemnify Irene Calma in the amount of
P50,000.00, and to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages.
It was Catalina Calma, mother of accused-appellant, who testified about Annalyn's and Roselyn's supposed show of affection
towards him and their supposed normal life during that trying period. But Catalina's testimony is hard to believe. Annalyn herself Four (4) Members of the Court, although maintaining their adherence to the separate opinions expressed in People v. Echegaray
testified that at that time, she was cutting classes and in school, her classmates saw her crying at the library. 33 Roselyn, on her 40 that R.A. No. 7659 insofar as it prescribes the penalty of DEATH is unconstitutional, nevertheless, submits to the ruling of the
part, testified that she was greatly bothered by what appellant had done to her and after the case was filed, she felt at peace and Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed.
was able to continue with her studies. 34
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this
There is also nothing commendable in accused-appellant's contention that the forceful insertion of a normal-size adult male penis decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning
into the vagina of girls of victims' ages would have required hospitalization and medical attention. Again, we sustain the Solicitor power. No pronouncement as to costs.
General's argument that full penetration of the vagina is not necessary to constitute the consummated crime of rape. It is settled
that the mere entry of the penis into the labia majora of the female organ even without rupture of the hymen, suffices to warrant a
conviction of rape. 35 G.R. No. 134583 July 14, 2004

The arguments of accused-appellant are premised on the misconception that reasonable doubt is anything and everything that PEOPLE OF THE PHILIPPINES, appellee,
removes a statement from the matrix of certitude. Were we to agree with him and treat every unlikely or uncommon trait vs.
FREDDIE MURILLO, appellant.
characterizing a person, each strange or unusual event in the occurrence of a crime, or just any unexplained, irregular or
dysfunctional behavior on the part of the accused or his victims, as basis for reasonable doubt, no criminal prosecution would
prevail. It bears repeating that even inconsistencies and discrepancies in the prosecution evidence, unless treating of the elements
of the crime, would not necessarily bring about a judgment of acquittal. In this case, there is not even any inconsistency or
discrepancy to speak of. Accused-appellant denied criminal liability by simply insisting that his daughters, with coaching from
their mother, lied on the witness stand. But during cross examination, they never flinched in their testimony. They spoke in simple, DECISION
direct words customary of children of their ages, and they maintained their testimony amidst warnings 36 by the court and the
defense counsel that their father may meted out the death penalty if found guilty of the crimes that they were charging him with.
Significantly, their testimony was corroborated by the medical findings of vaginal lacerations on all three victims and their non-
virgin state. 37 Neither may any of the defense evidence be attributed with having materially negated the positive testimony of
accused-appellant's daughters regarding their defilement in the hands of their father. The defense witnesses may have testified that AUSTRIA-MARTINEZ, J.:
they remained affectionate towards their father and continued to earn high grades in school, but they denied these statements and
statements and countered that they had cut classes and were sometimes seen crying in the library by some of their classmates. 38 Before this Court on automatic review is the decision1 rendered by the Regional Trial Court, Branch 259, Parañaque, dated June
All things considered, we find the evidence against the accused-appellant established his guilty beyond reasonable doubt. 1, 1998, finding appellant Freddie Murillo guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the
penalty of death.
WHEREFORE, the appeal is HEREBY DENIED, and the judgment of conviction rendered by the Regional Trial Court, 3rd
Judicial Region, Malolos Bulacan, Branch 14, finding Rodrigo Calma y Sacdalan guilty beyond reasonable doubt for two (2) The Information charges appellant Freddie Murillo as follows:
counts of Rape under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of Republic Act No. 7659, and one (1) count of
Acts of Lasciviousness under Art. 336 of the Revised Penal Code in relation to Sec. 5(B) of Art. III of Republic Act No. 7610, is
AFFIRMED with the slight modification that the civil indemnity in each of the three offenses is increased to P75,000.00 in That on or about the 6th day of June, 1997, in the Municipality of Parañaque, Metro Manila, Philippines and within the
accordance with the latest jurisprudence 39 on the matter. Accused-appellant RODRIGO CALMA Y SACDALAN is hereby jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident
sentenced: premeditation, did then and there willfully, unlawfully and feloniously attack, assault and stab one Paz Abiera with a
bladed weapon on her chest, thereby inflicting upon her serious and mortal wounds which directly caused her death.

In Criminal Case No. 752-M-96

With the aggravating circumstances of cruelty and abuse of superior strength.

To the penalty of death to be carried out in accordance with law; and to indemnify Annalyn Calma in the
amount of P75,000.00, and to pay her the amount of P50,000.00 as moral damages and P25,000.00 as CONTRARY TO LAW.2
exemplary damages;

33
Upon arraignment, appellant, with the assistance of Atty. Dante O. Garin of the Public Attorney's Office, pleaded guilty to the
charge.3 Trial then ensued.
The prosecution presented Sancho Ferreras, brother of the victim; barangay tanod Ramon Saraos; SPO2 Angel Nieves of the
Parañaque Police; and NBI Medico-legal Officer Ludivino Lagat. They established the following facts:
On the aggravating circumstances of abuse of superior strength, the mere fact that the assailant is a male person whereas
the victim is a woman does not ipso fact mean that such circumstance can be appreciated by the Court unless perhaps
if it was shown that the attacker was a Hulk Hogan and the victim is a frail reed thin woman. Cruelty likewise cannot
be inferred in the case at bar from the fact that the body of the deceased was dismembered in the absence of proof that
this was done while the victim was still alive. The object sought to be attained by Murillo in this case may well have
been to make the recovery of the body of the victim absolutely impossible.

On June 12, 1997, SPO2 Nieves received a report that Paz Abiera was missing.4 The following day, Ramon Saraos, a barangay
In regard to the qualifying circumstances of treachery or alevosia and evident premeditation, the fact that no commotion,
tanod of Cul de Sac Rotonda, Sun Valley, Parañaque received a request from Sarah Murillo, mother of herein appellant and Arlan
no unusual sounds or noises were even heard or noticed in the vicinity at the time of the stabbing of the victim would
Murillo, to investigate a foul smell emanating from the house of Paz Abiera. Said house was being shared by Paz and her two
indicate that the accused planned the killing and made sure that in its execution, there would be no risk to himself
nephews, appellant and Arlan. When Ramon asked appellant what happened to his aunt, the latter answered that Paz had been
arising from any defense which said victim might make. Considering the rule however, that, if two or more possible
missing since June 7, 1997 and that he earlier reported the incident to the police. Ramon then asked permission from appellant to
qualifying circumstances were alleged and proven or in the case obtaining at the bar, only one would qualify the offense
look inside the house and there he noticed blood stains at the foot of the house. Ramon also noticed that the foul odor was coming
to Murder and the other would be generic.9
from inside. He asked assistance from the Parañaque Police and SPO2 Nieves responded. When SPO2 Nieves arrived, they
removed the toilet bowl and opened the septic tank where they recovered parts of human arms and legs.5 SPO2 Nieves questioned
Freddie and Arlan, who both denied any involvement in the killing of Paz. SPO2 Nieves later ordered that the two brothers be The dispositive portion of the decision reads:
brought to Block 6. After about 30 minutes, SPO2 Nieves received a call from the radio saying that Freddie Murillo already
admitted to having killed his aunt Paz Aberia using a knife. Freddie then showed them where he threw Paz's severed head. They
WHEREFORE, premises considered, finding accused FREDDIE MURILLO, GUILTY beyond reasonable doubt of
were able to locate a red and white striped plastic bag which contained the victim's head at a canal near the service road of the
the crime of Murder as defined and penalized under Art. 248 of the Revised Penal Code with the qualifying and/or
South Super Highway. They also found a blood stained bed sheet, reading glasses and a stone with blood stains in the house of the
generic aggravating circumstances of treachery or alevosia and or evident premeditation, this Court hereby sentences
victim.6
him to the penalty of DEATH and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised
Penal Code. For the civil liabilities, he is further condemned to indemnify the heirs of the herein victim Paz Abiera the
They recovered a total of eighty pieces of body parts that were all in an advanced state of decomposition. An examination amount of P50,000.00 in line with existing jurisprudence; P27,000.00 for funeral expenses; P50,000.00 for moral
conducted on the body parts showed that there were stab wounds that penetrated the lungs, the intestines and the liver. The damages and P50,000.00 for exemplary damages.
examination also showed that it is possible that the instrument used in killing and decapitating the victim was a knife.7
The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of accused Freddie Murillo from
As a hostile witness of the prosecution, appellant testified as follows: On June 6, 1997, at around 2:30 in the afternoon, his aunt, the Parañaque City Jail to the Bureau of Correction in Muntinlupa City and finally to forward all the records of this
Paz Abiera scolded and slapped him for wasting electricity after she caught him watching television at the second floor of their case to the Supreme Court for automatic review in accordance with Sec. 9, Rule 122 of the Rules of Court and Art. 47
house. His vision darkened ("nagdilim na po ang pangingin ko") due to the repeated times that Paz scolded and uttered hurtful of the Revised Penal Code as amended by R.A. 7659.
words to him. When he saw a knife, he took it and stabbed her on the chest. He dragged her body from the second floor to the
comfort room downstairs where he chopped her body into several pieces using the same knife. After doing so, he removed the
SO ORDERED.10
toilet bowl and dumped the body parts into the septic tank. He brought the severed head to the highway along the service road near
Astra. Later, he asked help from his brother Arlan in cementing a new toilet bowl over the septic tank. His brother Arlan did not
know that he killed their aunt. It took him a while to confess his guilt because he was afraid that the police might hurt him. While Hence this automatic review pursuant to Article 47 of the Revised Penal Code, as amended.
his mother, Sarah Murillo, often visited him and Arlan at their aunt's house, he did not tell his mother about what he did because
he was afraid.8
In his brief, appellant claims that the court a quo gravely erred:

After the testimony of appellant, the prosecution rested its case. On June 1, 1998, the trial court rendered its decision with the
following findings: I

…IN CONVICTING (HIM) OF THE CRIME OF MURDER AND SENTENCING HIM TO DEATH ON THE BASIS
Assessing the evidence on record, particularly considering the admission made in open Court by the herein accused
despite having been duly informed by his counsel of the consequences of his testimony, this Court finds without an iota OF HIS IMPROVIDENT PLEA OF GUITY; and
of doubt that he alone committed the abominable act of killing his aunt and later on hideously dismembering her body
in his attempt to hide the corpus of his crime. Truly unspeakable is the manner by which accused Murillo disposed of II
the body of the victim first by cutting her body parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the South Superhighway.
…IN CONSIDERING THE CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION IN
QUALIFYING THE KILLING TO MURDER NOTWITHSTANDING THAT THE PROSECUTION FAILED TO
... ESTABLISH THE SAME.11

The information charges the herein accused for committing the crime of Murder with the qualifying circumstances of Appellant argues: His plea of guilt was improvident since there was no indication that he fully understood that the qualifying
treachery (alevosia) and evident premeditation and with cruelty and abuse of superior strength as aggravating circumstances charged in the information would result to the penalty of death. He only admitted the killing but not the
circumstances. circumstances of treachery and evident premeditation. There could be no evident premeditation since he stabbed Paz only after
losing his senses. There could also be no treachery since it cannot be determined with certainty whether or not the wounds inflicted

34
on the victim were made before or after her death. The aggravating circumstance of "outraging or scoffing at his person or corpse"
cannot be appreciated in this case since it was not alleged in the Information.12
The Solicitor General points out that there was treachery since the appellant himself admitted that when his aunt scolded him, he
took a knife and suddenly stabbed her in the chest;13 and that the trial court did not err in finding the presence of evident
premeditation.14
In his Reply, appellant adds that the observations made by the court a quo are based merely on inferences that are unsubstantiated
by concrete evidence.15
After reviewing the entire records of the case, we find that there was an improvident plea of guilt that warrants the remand of the
case to the trial court.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of evidence.--- When the accused pleads guilty to a capital offense,
the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his
plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may also
present evidence in his behalf.
The reason for this rule is that courts must necessarily proceed with more care where the possible punishment is in its severest
form – death – for the reason that the execution of such sentence is irrevocable. Experience has shown that innocent persons have
at times pleaded guilty in the hope of a lenient treatment, or upon bad advice or because of promises of the authorities or parties
of a lighter penalty should he admit guilt or express remorse. An accused might be admitting his guilt before the court and thus
forfeit his life and liberty without having fully understood the meaning, significance and consequences of his plea. The judge
therefore has the duty to ensure that the accused does not suffer by reason of mistaken impressions.16 Requiring the trial court to
take further evidence would also aid this Court on appellate review in evaluating the propriety or impropriety of the plea.17
Under the said rule, three things are required from the trial court when a plea of guilty to a capital offense is entered: (1) the court
must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences
thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of
his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he
desires.18
The searching inquiry referred to here means more than just informing cursorily the accused that he faces jail term.19 The inquiry
must expound on the events that actually took place during the arraignment, the words spoken and the warnings given, with special
attention to the age of the accused, his educational attainment and socio-economic status as well as the manner of his arrest and
detention, the provision of counsel in his behalf during the custodial and preliminary investigations, and the opportunity of his
defense counsel to confer with him. The trial court must also explain to the accused the essential elements of the crime he is
charged with as well as its respective penalties and civil liabilities.20 The exact length of imprisonment under the law and the
certainty that he will serve time at the national penitentiary or a penal colony must be fully explained to the accused. The court
must also explain to the accused that once convicted, he could be meted the death penalty and that it is a single and indivisible
penalty that will be imposed regardless of any mitigating circumstance that may have attended the commission of the felony.21
The court must also direct a series of questions to the defense counsel to determine whether he has conferred with the accused and
has completely explained to the latter the meaning of a plea of guilt. This formula is mandatory and absent any showing that it has
been followed, a searching inquiry cannot be said to have been undertaken.22
In People vs. Pastor,23 the Court explained that while there is no definite and concrete rule as to how a trial judge must conduct a
"searching inquiry", the following guidelines should nevertheless be observed:
1. Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the
assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions
35
he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused
has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent
quarters or simply because of the judge's intimidating robes.
2. Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the
accused the meaning and consequences of a plea of guilty.
3. Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.
4. Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he
will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad
advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse.
It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of
guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances
attending it, that increase punishment.
5. Inquire if the accused knows the crime with which he is charged and fully explain to him the elements of the crime
which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right
to be informed of the precise nature of the accusation against him and a denial of his right to due process.
6. All questions posed to the accused should be in a language known and understood by the latter.
7. The trial judge must satisfy himself that the accused in pleading guilty, is truly guilty. The accused must be required
to narrate the tragedy or reenact the crime or furnish its missing details.24
In the case at bar, records do not show that a searching inquiry was ever conducted by the judge when appellant entered his plea
of guilty. The Order dated July 14, 1997 simply reads as follows:
Accused, when arraigned, with the assistance of Atty. Dante O Garin of the Public Attorney's Office, pleaded GUILTY
to the crime charged in the information.
Let this case be set for hearing on July 28, 1997 at 8:30 o'clock in the morning.
Let subpoena be issued to all prosecution witnesses for the next scheduled hearing.
SO ORDERED.25
While we have held that the absence of the transcript of stenographic notes of the proceedings during the arraignment does not
make the procedure flawed, the minutes of the proceedings, however, must indubitably show that the judge has substantially
complied with the requirements of Rule 116, Sec. 3.26 No less than a man's life is at stake in this case. Whatever appellant might
have said to show that he was waiving his defense voluntarily and with full knowledge of the consequences of his plea should
have been made of record.27 Here, there is no proof at all that the judge ever conducted any searching inquiry.
The trial court mentioned in its decision the importance of Section 3, Rule 116, of the Rules of Court in cases of pleas of guilt,
however, it failed to show compliance therewith. Pertinent portions of the decision read:
Under Sec. 3, Rule 116 of the Rules of Court, when the accused pleads guilty to a capital offense, the court shall conduct
a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the
prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf.
 In People vs. Salvador, 224 SCRA 819, to be liable for murder, an accused must be proven to have committed the
killing of another person under the attendant circumstances specified in Article 248 of the Revised Penal Code.
In People vs. Jocson, 163 SCRA 525, Accused's plea of guilty which was freely and voluntarily made added to the
evidence adduced by the prosecution sufficiently established his culpability.
With the plea of guilty, appellant had admitted the commission of the unlawful act. Hence, the presumption is that the
act was done with an unlawful intent unless accused rebuts this presumption. People vs. Verona, 163 SCRA 614.
Assessing the evidence on record, particularly considering the admission made in open Court by the herein accused
despite having been duly informed by his counsel of the consequences of his testimony, this Court finds without an iota
of doubt that he alone committed the abominable act of killing his aunt and later on hideously dismembering her body
in his attempt to hide the corpus of his crime. Truly unspeakable is the manner by which accused Murillo disposed of
the body of the victim first by cutting her body parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the South Superhighway.28
The transcript of how the defense counsel, Atty. Dante O. Garin of the Public Attorney's Office, supposedly informed the accused
of his rights also merely read as follows:
ATTY. GARIN:
Your Honor please the accused already pleaded guilty to the offense charged and the only reason we have
to the motion of presenting evidence is that the guilt of the accused must be proven by the prosecution
notwithstanding the plea of guilty entered into during his arraignment. This representation your Honor finds
it necessary to inform the accused of his constitutional rights. And with the Court's permission, before he
will testify as hostile witness, I would like to inform the accused for the record.
Q. Mr. Freddie Murillo, ikaw ang akusado dito sa kasong ito. Ang proseso natin ay kung sino man ang nagbibintang
ay siyang dapat magpatunay ng kasalanang ibinibintang. Sa sitwasyong ito, ikaw ay pinagbibintangan ng kasong
murder. At ang ebidensiyang gagamitin ay dapat manggagaling sa kung sino man ang nagbibintang sa iyo na ikaw ay
nakapatay ng tao. Ngayon ikaw ay uupo ngayon sa silyang iyan para magsalita tungkol doon sa pangyayari. Meron
kang karapatan na hindi pumayag na magsalita ng ano'ng bagay na maaaring ikapahamak mo. Maaari mong hindi
sagutin iyong tanong, maaring hindi ka umupo riyan, nasa sa iyo ang desisyon. Naiintindihan mo ba?
A. Opo.
Q. Ngayong naipaliwanag ko na sa iyo ikaw ba ay handang magsalita tungkol sa kasong ito?
A. Opo.
That's all for the witness, your Honor.29
Clearly, the proceedings taken by the trial court was short of being satisfactory. Appellant was never asked about the circumstances
of his arrest and detention, not even when SPO2 Nieves himself in his testimony mentioned that he ordered that the two brothers
be brought to "Block 6" for questioning without the presence of counsel. Where or what kind of place "Block 6" is, was not even
explained by the witness neither did the court nor the defense counsel ask the witness to clarify said point. The Court also did not
ask appellant about the circumstances of his arraignment as well as his age and educational attainment. He was also neither apprised
of the consequences of his plea nor was it explained to him that the penalty imposable for the crime attended by its qualifying
circumstances as alleged in the Information is death regardless of the presence of mitigating circumstances.
36
The failure of the defense counsel to faithfully protect the rights of appellant also cannot go unnoticed. Records show that defense
counsel Atty. Dante O. Garin, never cross-examined three of the four witnesses of the prosecution, namely Sancho Fereras,30
Ramon Saraos,31 and Dr. Ludivino Lagat.32 The only prosecution witness he cross-examined was SPO2 Nieves to whom he
asked four questions pertaining only as to how the police came to the conclusion that the body parts belong to Paz Abiera.33 Apart
from these, no other questions were ever offered.
There is also no record anywhere that the defense counsel presented evidence for the accused nor that the trial court even inform
him of his right to do so if he so desires.
For these reasons, it cannot be said that the appellant's rights were observed in the proceedings a quo.
It is well established that the due process requirement is part of a person's basic rights and is not a mere formality that may be
dispensed with or performed perfunctorily. An accused needs the aid of counsel lest he be the victim of overzealous prosecutors,
of the law's complexity or of his own ignorance and bewilderment. Indeed, the right to counsel springs from the fundamental
principle of due process.34 The right to counsel, however, means more than just the presence of a lawyer in the courtroom or the
mere propounding of standard questions and objections. The right to counsel means that the accused is sufficiently accorded legal
assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. This right necessitates
an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the
basic rights of the accused, his being well-versed on the case and his knowing the fundamental procedures, essential laws and
existing jurisprudence. Indeed, the right of an accused to counsel finds meaning only in the performance by the lawyer of his sworn
duty of fidelity to his client and an efficient and truly decisive legal assistance which is not just a simple perfunctory
representation.35
Atty. Garin, had the duty to defend his client and protect his rights, no matter how guilty or evil he perceives appellant to be. The
performance of this duty was all the more imperative since the life of appellant hangs in the balance. As a defense counsel, he
should have performed his duty with all the zeal and vigor at his command to protect and safeguard appellant's fundamental
rights.36
While our jurisdiction does not subscribe to a per se rule that once a plea of guilty is found improvidently he is at once entitled to
a remand, the circumstances of this case warrant that a remand to the trial court be made. To warrant a remand of the criminal
case, the Court has held that it must be shown that as a result of such irregularity there was inadequate representation of facts by
either the prosecution or the defense during the trial.37 Where the improvident plea of guilty was followed by an abbreviated
proceeding with practically no role at all played by the defense, we have ruled that this procedure was just too meager to accept as
being the standard constitutional due process at work enough to forfeit a human life.38 What justifies the remand of the criminal
case to the trial court is the unfairness or complete miscarriage of justice in the handling of the proceedings a quo as occasioned
by the improvident plea of guilt.39 In this case, apart from the testimony of appellant, the prosecution does not have any other
evidence to hold him liable for the crime charged.
In view of the foregoing, we find that it is imperative to remand the case for the proper arraignment and trial of the accused,
considering not only the accused's improvident plea of guilt but also his lawyer's neglect in representing his cause.
WHEREFORE, the decision dated June 1, 1998 of the Regional Trial Court, Branch 259, Parañaque, finding appellant Freddie
Murillo guilty beyond reasonable doubt of Murder in Criminal Case No. 97-502 is ANNULLED and SET ASIDE. Let the records
be REMANDED to the court of origin for further proceedings as indicated in the text of herein decision, to be conducted with
deliberate speed in accordance with this decision.
G. R. No. 128823-24 December 27, 2002
PEOPLE OF THE PHILIPPINES, accused-appellee,
vs.
PEDRO FLORES, JR., y FLORES ALIAS "PESIONG", accused-appellant.
DECISION
CARPIO-MORALES, J.:
An assault on sexual innocence can open a floodgate of emotions. This Court, however, cannot allow emotions to drown an
accused’s right to be informed of the nature and cause of the accusation against him.
For automatic review before this Court is the Joint Decision of the Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding
accused-appellant Pedro Flores Jr. y Flores alias "Pesiong" guilty of two counts of rape of his then 11 year old daughter and
sentencing him to suffer the penalty of death in each.
The complaints against accused-appellant filed on February 3, 1997 read as follows:
Criminal Case No. U-9184:
CRIMINAL COMPLAINT1
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of "RAPE", committed
as follows:
That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of
force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein complaining
witness FILIPINA FLORES Y LAZO, 11 years old, all against her will.
x x x (Emphasis supplied).
Criminal Case No. U-9185:
CRIMINAL COMPLAINT2
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a resident of Sitio Buenlag, Brgy.
Nancamaliran West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS "PESYONG",
committed as follows:
That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate
intent and by means of force and intimidation, did then and there, willfully, unlawfully, criminally and feloniously sexually abuse
the herein complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein accused with the use of sharp
pointed bladed weapon and all against her will.
x x x (Emphasis supplied).
Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both charges.3
Culled from the records of the case are the following facts established by the prosecution:
37
On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old at the time, and her younger sister Catherine
were left to the care of their father, herein accused-appellant, at their family residence in Sitio Buenlag, Barangay Nancamaliran
West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having departed for Singapore to work as an overseas contract
worker.
After partaking of supper on the night of December 9, 1996,4 accused-appellant asked Filipina to accompany him to the comfort
room situated outside their house,5 claiming that he was afraid of ghosts.6 Albeit Filipina did not believe7 him, she acquiesced
because her mother had told her to always obey her father. 8
When accused-appellant came out of the comfort room, he ordered Filipina to remove her short pants, threatening her with death
if she disobeyed,9 and made her lie down.10 He then removed his short pants and brief and, against her will, he inserted his finger
and later his penis into Filipina’s vagina11 where she later felt hot fluid.12
Accused-appellant thereafter wiped Filipina’s vagina and his hand, threatened to kill her if she reported what he did, directed her
to put on her shorts, and they both went home. The following morning, Filipina reported the incident to her "Inang Lorie" whose
full name is Norielyn Antonio, the aunt of her mother, who told her that if her father would sexually assault her again, he would
have him detained.
Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their house, she was awakened when accused-appellant
touched her right foot.13 Armed with a knife14, accused-appellant told her not to talk15 and ordered her to remove her short pants
and panty. She complied. Accused-appellant thereupon removed his short pants and brief and went on top of her chest during
which she tried to push him away but failed.
Accused-appellant then inserted his finger into Filipina’s vagina for some time,16 wiped his hands, and then inserted his penis for
a long time as he was sucking her breast. Filipina felt accused-appellant’s semen drop into her private organ where she noticed the
presence of blood and a bit of whitish substance.
Accused-appellant later wiped her vagina with a towel. The following morning, private complainant again reported the matter to
her grandaunt Norielyn,17 and to her playmate Carla Salvador.18
On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle driver-neighbor, reported the matter to the
Philippine National Police of Urdaneta where she gave a statement. On the same day, she, still accompanied by Norielyn, submitted
herself to a medical examination at the Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are contained in
a medical certificate19 showing the following:
(-) Negative menarche
- Multiple deep healed lacerations all over the labia majora.
- Admits examining finger with ease.
- (+) sticky whitish discharge.
Dr. Jeanna B. Nebril, the examining physician, found the presence of "deep-healed lacerations all over the labia majora"20 which
deep-healed lacerations connote, according to the doctor, the application of force, possibly two weeks before the examination.
Denying the accusations, accused-appellant claimed as follows:
Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending school on the 6th, 7th and 8th of December
that year and for having received money from her classmate,21 was not in their house on the night of December 9, 1996 because
she was in the house of Norielyn. Neither was she in their house on the night of December 28, 1996 as she was at the house of his 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction
mother Margarita Flores22 in Cafloresan. if one should be had.

Accused-appellant’s testimony was corroborated by his mother Margarita, and his teenaged children Benito and Baby Jean Flores The right cannot be waived for reasons of public policy. 27 Hence, it is imperative that the complaint or information filed against
who were staying in his mother’s house. It was also corroborated by another teenaged child, Jocelyn Flores, who was staying in the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged
the house of accused-appellant’s mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.23 Jocelyn added that Filipina to have been committed.28 For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily
had intimated to her that she fabricated the rape charges because their maternal grandmother Lourdes wanted their father, accused- included in the complaint or information.29
appellant, jailed as he begrudged him for having eloped with their mother, 24 and that Lourdes threatened her with abandonment or
detention in jail in case she defied, and promised to give her jewelry, shoes and dress if she agreed to carry out her desire.
The court a quo found accused-appellant guilty of Statutory Rape under Article 33530 of the Revised Penal Code, as amended by
R. A. No. 7659 (which restored the death penalty for heinous crimes effective December 31, 1993) which provides:
After trial, the court a quo found accused-appellant guilty of Statutory Rape and sentenced her to death in both cases in its April
7, 1997 Joint Decision, the dispositive portion of which reads:
Article 335. When and how rape is committed.--- Rape is committed by having carnal knowledge of a woman under any of the
following circumstances:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES ALIAS PESIONG beyond
reasonable doubt of the crime of Statutory Rape, an offense defined and penalized under paragraph 3, Article 335, of the Revised
1. By using force or intimidation;
Penal Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y
FLORES ALIAS PESIONG as follows:
2. When the woman is deprived of reason or otherwise unconscious; and
CRIMINAL CASE NO. U-9184 – to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina
the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. 3. When the woman is under twelve years of age or is demented.

CRIMINAL CASE NO. U-9185 – to suffer the penalty of DEATH; ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina The gravamen of the crime of rape is carnal knowledge or sexual intercourse between a man and a woman under the circumstances
the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all the necessary penalties and costs. enumerated in the penal code.31 Thus, to sustain a conviction, the complaint or information must allege that the accused had carnal
knowledge of or sexual intercourse with the private complainant. In the criminal complaints at bar, however, no such allegation
was made.
Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court
is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court of the Philippines for automatic review
of this Decision. The allegation that accused-appellant did "sexually abuse" Filipina does not suffice. In the recent case of People v. Lito Egan alias
Akiao32, this Court ruled that "although the prosecution has proved that [the therein private complainant] Lenie was sexually
abused, the evidence proffered is inadequate to establish carnal knowledge." 33Hence, sexual abuse cannot be equated with carnal
In view of the penalty of death imposed by the court a quo, the case is now before this Court on automatic review. Accused-
knowledge or sexual intercourse.34 The allegation in the instant criminal complaints that accused-appellant "sexually abuse[d]" the
appellant assigns as errors the following:
private complainant cannot thus be read to mean that accused-appellant had carnal knowledge or sexual intercourse with the private
complainant.
I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS OTHER THAN THE TRUTH
AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD BE ACQUITTED.
This Court is not unaware of the rule in case there is a variance between allegation and proof as etched in Section 4 of Rule 120
of the Revised Rules of Criminal Procedure which reads:
II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE ACCUSED-APPELLANT
THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME WHEN THE ALLEGED INCIDENTS TOOK
SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the
PLACE, A DEFENSE SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT
complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the
WOULD HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT.
accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is
included in the offense proved.35
It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court
to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors
The case at bar, however, is not one of variance between allegation and proof. The recital of facts in the criminal complaints simply
or not.25
does not properly charge rape, "sexual abuse" not being an essential element or ingredient thereof.

It is at once apparent, from a reading of the above-quoted complaints, that accused-appellant was denied the constitutional right to
be informed of the nature and cause of the accusation against him. This right has the following objectives: 26
1. To furnish the accused with such a description of the charge against him as will enable him to make the defense;
2. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause;
Neither can accused-appellant be convicted of acts of lasciviousness or of any offense for that matter under our penal laws. It is
settled that what characterizes the charge is the actual recital of facts 36 in the complaint or information. For every crime is made
up of certain acts and intent which must be set forth in the complaint or information with reasonable particularity of time, place,
names (plaintiff and defendant), and circumstances. In other words, the complaint must contain a specific allegation of every fact
and circumstance necessary to constitute the crime charged 37, the accused being presumed to have no independent knowledge of
the facts that constitute the offense.38

38
And even under the provisions of Republic Act No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act),39 accused-appellant cannot be held liable. Section 5 of said Act provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the
following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other
similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage
such child in prostitution.
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall
be prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised Penal Code, as amended by Act
No. 3815, for rape or lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal
in its medium period; and
(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the
prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or
which engages in prostitution in addition to the activity for which the license has been issued to said establishment.
(Emphasis and underscoring supplied).
Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases 40, issued pursuant to Section
32 of Republic Act No. 7610, defines "sexual abuse" by inclusion as follows:
Sexual abuse includes 1) the employment, use, persuasion, enticement, or coercion of a child to engage in, or assist another person
to engage in sexual intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest with children. (Underscoring
supplied)
From this broad, non-exclusive definition, this Court finds that the phrase "sexually abuse" in the criminal complaints at bar does
not comply with the requirement that the complaint must contain a specific averment of every fact necessary to constitute the
crime. Notably, the phrase "sexual abuse" is not used under R.A. No. 7610 as an elemental fact but as an altogether separate
offense. Above-quoted Section 5 thereof enumerates the punishable acts that must be alleged in the complaint or information to
hold an accused liable, none of which is reflected in the complaints at bar charging accused-appellant.
The case of People v. Cruz 41 is instructive. There the information in Criminal Case No. 15368-R read:
39
That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter
either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth
and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being.
CONTRARY TO LAW. (Emphasis supplied)
Finding the above-quoted information void, this Court held:
The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal
Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness."
It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which
among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state
the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under
the rules of criminal procedure. Section 8, Rule 110 thereof provides:
Designation of the offense.—The complaint or information shall state the designation of the offense given by the statue, aver the
acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of
the offense, reference shall be made to the section or subsection of the statute punishing it.
The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his
daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts
constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case
No. 15368-R is therefore void for being violative of the accused-appellant’s constitutionally-guaranteed right to be informed of
the nature and cause of the accusation against him. (Emphasis & underscoring supplied)
As held by this Court in the above-case of Cruz, the allegation in the information that the therein accused-appellant sexually abused
the therein private complainant by either raping or committing acts of lasciviousness on her "is not a sufficient averment of the
acts constituting the offense as required under Section 8 [of Rule 110], for these are conclusions of law, not facts." Nothing less
can be said of the criminal complaints in the cases at bar. They are void for being violative of the accused-appellant’s constitutional
right to be informed of the nature and cause of the accusation against him.
This Court thus takes this occasion to remind public prosecutors of their crucial role in crafting criminal complaints and
information. For all efforts may be rendered futile and justice may be denied by a failure to state "the acts or omissions complained
of as constituting the offense" as exemplified by the present case.
The foregoing disquisition leaves it unnecessary to dwell on accused-appellant’s assigned errors or of other errors including failure
to allege relationship in the first complaint, and lack of proof of minority in both cases.
WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are hereby declared null and void for being violative
of the constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias "Pesiong," for Rape to be informed of the nature
and cause of the accusation against him. Hence, the cases against him are hereby DISMISSED.
The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully
held for another cause and to inform the Court accordingly within 10 days from notice.
G.R. No. 139180 July 31, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, mother after the latter had returned home that she had been raped by accused-appellant because she was afraid of her father who
vs. had threatened her. After the rape, accused-appellant would only come home on Sundays.8
ROLANDO RIVERA, accused- appellant.
Questioned further on cross-examination, Erlanie said that she gave her sworn statement before the police and that her answers to
MENDOZA, J.: questions asked during her direct examination were freely given without coaching by anyone. She could understand Tagalog, the
language used in her sworn statement. She told the court that she struggled against accused-appellant, kicking and pushing him,
but she was overpowered by her father. At that time, Erlanie’s younger sister, Corazon, was lying beside her, but Erlanie did not
This is a review pursuant to Rule 122, §10 of the Rules of Criminal Procedure of the decision, 1 dated June 22, 1999, of the Regional
shout even when her father succeeded in penetrating her. Erlanie could not remember how long the sexual act took place, but she
Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant Rolando Rivera guilty of rape and sentencing him to suffer
felt something like urine come out of her father’s penis after he was finished with her. Erlanie testified that she was 12 years old
the penalty of death and to pay the offended party, Erlanie Rivera, the sum of P75,000.00 as compensatory damages and P50,000.00
when she was raped by her father.9
as moral damages.

On re-direct examination, when asked about the discrepancy between her testimony that her mother returned home only the day
The information against accused-appellant charged—
after the rape and her statement in her affidavit that accused-appellant slept beside her mother after the rape, Erlanie replied that
she made a mistake as the incident narrated in her affidavit referred to a different occasion when no rape was committed against
That sometime in the month of March 1997, in barangay Santiago, municipality of Lubao, province of Pampanga, her by accused-appellant.10
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO RIVERA, by
means of violence, threat and intimidation, did then and there willfully, unlawfully and feloniously, and maliciously
The next witness for the prosecution was Marietta Pagtalunan, complainant’s aunt and the sister of complainant’s mother,
succeeded in having carnal knowledge [of] his 13 year old daughter, Erlanie D. Rivera, against the latter’s will and
Evangeline. Marietta corroborated Erlanie’s testimony that the latter told her sometime in April 1997 that she had been raped by
without her consent.
accused-appellant. Marietta said she took complainant to Dr. Barin, who examined complainant. 11

Contrary to law.2
Dr. Demetria Barin was Chief Physician of the Escolastica Romero District Hospital. Her findings are as follows:

When the information was read to him in the local dialect (Pampango) during his arraignment on September 30, 1997, accused-
P.E. FINDINGS:
appellant, duly assisted by counsel de oficio, pleaded not guilty to the crime charged,3 whereupon trial was held.

- No signs of external Physical Injuries

The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin,
who conducted the physical examination of complainant.
I.E. FINDINGS:
Complainant Erlanie Rivera testified that sometime in March 1997, her younger sister, Zaira,4 was taken by their parents to the
Escolastica Romero Memorial Hospital in Lubao, Pampanga. Complainant’s mother stayed with her sister in the hospital, but her HYMEN - healed laceration at 3:00 o’clock
father, herein accused-appellant, went back home to Santiago, Lubao, Pampanga. At around 11 o’clock in the evening of the same
day, complainant was awakened as accused-appellant started kissing her and fondling her breasts. Complainant tried to resist by
VAGINA - Admits one finger with ease two fingers with difficulty
kicking and pushing accused-appellant, but her efforts were to no avail. Accused-appellant removed her shorts and panty, touched
her private parts, and then had sexual intercourse with her. After he was through with her, accused-appellant told complainant not
to tell anyone what had happened or he would kill complainant’s mother and sister. Hence, when her mother came home the UTERUS - not enlarged
following day, Erlanie did not tell her what had happened because she was afraid of accused-appellant.
LMP - March 3, 1997
On April 9, 1997, however, Erlanie, in the presence of her mother, told her aunt, Marietta Pagtalunan, and her grandmother,
Maxima Payumo, that she had been raped by accused-appellant. For this reason, she was referred to Dr. Barin for physical
examination. She also executed a sworn statement before the police of Lubao, Pampanga. 5 Pregnancy Test (+)12

Erlanie testified that she became pregnant as a result of the rape committed against her by accused-appellant, but the pregnancy
was aborted.6 On cross-examination, she said she was 13 years old at the time of her testimony, the second child in the family. She
said that her parents were not on good terms with each other and that she knew that her father had a mistress. Atty. Mangalindan,
then defense counsel, questioned Erlanie about other supposed acts of molestation committed by accused-appellant against her
previous to the rape subject of the present case, but, upon objection of the prosecution, the trial court disallowed the question on
the ground that it concerned matters not covered by her direct examination. 7
Dr. Barin testified that on April 10, 1997, she examined complainant Erlanie Rivera and found that the victim had an injury in the
hymen at the 3 o’clock position which could possibly have been caused by the insertion of a hard object, such as a male organ. Dr.
Barin testified that complainant Erlanie went back to see her on May 2, 1997 because she suffered from vaginal bleeding indicative
of a threatened abortion. She said that she found that complainant was then pregnant. Upon examination of the patient at that time,
Dr. Barin found that abortion had not yet taken place and prescribed medicines for the complainant. Erlanie was subjected to
another pregnancy test on May 13, 1997, but the result was negative. Dr. Barin stated that the vaginal bleeding suffered by
complainant could have caused the abortion of the fetus.13

Erlanie testified that her mother, grandmother, aunt, and a certain Nora Baluyut were present when she made her sworn statement
Thereafter, the defense presented its evidence. Accused-appellant, his sister, Concepcion Sayo, and Natividad Pinlac, Records
before the police. She said that her father raped her only once, sometime in March 1997. She could not remember the exact date
when she was raped by accused-appellant, but she did remember that the same took place in March as her sister, Zaira, was Officer of the Escolastica Romero District Hospital, were presented as witnesses.
hospitalized at the time. When the rape occurred, her younger brother and sister were in their house asleep. She did not tell her

40
Accused-appellant denied that he raped Erlanie Rivera. He alleged that the rape charge was filed against him because his wife, Procedural due process simply means that a person must be heard before he is condemned. The due process requirement is a part
Evangeline, had a paramour and resented him because he hurt her. He explained that he saw his wife talking with another man in of a person’s basic rights, not a mere formality that may be dispensed with or performed perfunctorily. 23 Considering both the
their house and beat her up on April 1, 1997 because he heard that she had a lover. He also said that his wife was angry with him evidence and the law applicable to this case, we hold that accused-appellant has been accorded his right to due process.
because he had a mistress who stayed in their house for three weeks. He further stated that his wife’s relatives were likewise angry
with him because he caused the lot owned by his father-in-law in Santiago, Lubao, Pampanga to be registered in his name. He said
A. One basis for accused-appellant’s contention that he was denied due process is the refusal of the trial judge to allow Atty.
that he was compelled to sign a waiver of his rights over the land owned by his parents-in-law.14 The defense presented a letter to
Mangalindan’s questions concerning the other alleged acts of molestation committed by accused-appellant against complainant.
accused-appellant written by his wife, who was asking him to sign a document so that she could attend to it before he got out of
Accused-appellant argues that no legal ground exists for the trial court’s ruling.
prison.15

The transcript of stenographic notes concerning this incident shows the following:
The defense also offered as evidence a document, designated as Waiver of Rights,16 signed by accused-appellant, in which he
acknowledged that he was a tenant of a parcel of land and that he waived and voluntarily surrendered his right over the said
landholding to the "SMPCI," recommending that a certain Ponciano Miguel be given the land to work on the same. The document ATTY. MANGALINDAN:
was identified by accused-appellant in open court. He said that Ponciano Miguel was a first cousin of his wife and that he signed
the document because his wife’s relatives promised him that he would get out of prison after signing the document.17
Q You mentioned in your testimony that you were molested by your father since 1996.

Another witness for the defense was Concepcion Sayo, accused-appellant’s sister, who testified that in March 1997, accused-
COURT:
appellant lived with her family in Malawak, Bustos, Bulacan, to help her husband operate a fishpond. She said that accused-
appellant stayed in their house during the entire month of March, except in March 19, 1997 when he stayed with their sister, Perla,
in Tibagan, Bustos, Bulacan.18 Are you referring to a chain of events because police station you are referring is something there are two
places this girl testified that she was raped, you referred to us Acts of Lasciviousness and she did not testified
The last defense witness was Natividad Pinlac, Records Officer of the Escolastica Romero District Hospital, who identified 19 a about that, that is another case with another Court, we are only trying here a rape case that is only they you
certification, dated April 29, 1999, in which it was stated that Zaira Rivera was confined at that hospital from March 1 to March never mention. Only on the matters that she testified (sic).
2, 1997.20
ATTY. MANGALINDAN:
On June 22, 1999, the trial court rendered a decision, the dispositive portion of which stated:
But this is also related to the rape case your Honor because I will confront it with another form of a question.
WHEREFORE, the court finding the accused guilty beyond reasonable doubt of the crime of rape as charged. For
having violated Article 335 of the Revised Penal Code, as amended by Republic Act 7659, with the attendant ATTY. MANGALINDAN:
circumstances that the victim is under eighteen (18) years of age and the offender is the father of the victim and absent
any circumstance that could mitigate the commission thereof, accused is hereby sentenced to suffer the supreme penalty
of death by lethal injection. Q Prior to this incident, were you molested by your father?

In line with established jurisprudence, said accused is also ordered to indemnify the offended party Erlanie Rivera in PROSECUTOR SANTOS:
the sum of P75,000.00 as compensatory damages and P50,000.00 as moral damages.
Immaterial, your Honor, whatever acts w[ere] done by the accused is not a subject of the case at bar.
SO ORDERED.21
COURT:
Hence, this appeal. Accused-appellant contends that:
Let us confine [questioning] to the complaint at bar which is a rape case.
1. The lower court failed to observe the constitutional right of the Accused-Appellant to due process and right to
counsel; ATTY. MANGALINDAN:

2. The lower court failed to consider the evidence of the Accused-Appellant.22
I. Accused-appellant invokes his right to due process of law. He claims that he was denied the same because: (a) the trial judge
disallowed his lawyer from cross-examining Erlanie Rivera concerning the latter’s sworn statements on the ground of irrelevance
and immateriality; (b) the trial court denied the motion made by accused-appellant’s counsel de oficio to postpone the cross-
examination of Dr. Barin, the examining physician, because of which the said counsel consequently waived the cross-examination
of Dr. Barin; (c) the judge propounded numerous questions to accused-appellant during his cross-examination by the prosecutor;
and (d) the trial court’s decision was promulgated just one day after accused-appellant submitted his memorandum.
41
This is related to the incident because we are here your Honor to prove, we are trying to discredit her
testimony. We will just direct our question touching on the direct examination.
COURT:
Only on the matters that she only testified that is only thing you can cross-examine. Only matters testified
which is only a rape case let us not dwell the Court knows there are other cases Acts of Lasciviousness
pending in the lower Court at the proper Court otherwise if I will allow you to ask questions on other matters
specially I know you are pinpointing the Acts of Lasciviousness you are prolonging this case here (sic).
 ATTY. MANGALINDAN:
I am trying to discredit the witness as one where the credibility as witness here your Honor is very important.
I stated before our main cross-examination is the accused is not a plan in such case, although I do sympathize
(sic). We would like to propound question that will discredit her as witness and a complainant not with her
testimony alone. Our center of cross-examination is to discredit her as complaining witness that is why our
question may not be limited to be accepted under the rule of cross-examination your Honor the cross-
examination your Honor the cross-examiner is not limited on the direct-testimony of the witness but he can
propound questions which may petition or destroy the credibility of the witness that is our view point (sic).
PROSECUTOR SANTOS:
We cannot dispute the right of accused to discredit or to adopt our credibility of our witness, but it should
be done in the proper way, not to ask immaterial questions which are not related.
ATTY. MANGALINDAN:
The rule for cross-examination insofar as to destroy the credibility of the witness is not only limited to what
the Honorable Fiscal we came approach of so many cross-examinations goes allow your Honor under the
rules of Court insofar as this case is related to the present case we are trying, this is very related because
even the witness I have transcript in my hand, testified not only the rape case your Honor she had testified
by direct-examination the preparatory acts before the testimony of rape that she was been molested early,
finger of the father, this were testified through by the witness, it is here direct-testimony it is not limited
(sic).
PROSECUTOR SANTOS:
Prior to this incident were you molested by your father, obviously your Honor the question is not relevant.
ATTY. MANGALINDAN:
Your Honor please I’m very disagreeable (sic), I have not with me the transcript but I have read that you
[can] ask questions concerning the rape case.
COURT:
A question referring to events prior to the complaint at bar.24
The trial court later issued an order, dated December 9, 1997, the pertinent parts of which provided:
After private complainant testified on direct-examination, counsel for accused attempted to cross-examine her on
matters relevant to the complaint for Acts of Lasciviousness which was objected to by Asst. Provincial Prosecutor
Arturo G. Santos on the ground that private complainant did not testify on that matter but limited her testimony on the
rape case only. Counsel for the accused argued that although that is correct nonetheless because [of] the sworn statement
executed by private complainant identified by said witness in her direct examination and marked as Exhibit "C" for the
prosecution, he is at liberty to cross-examine the witness on all matters stated in her sworn statement including that
portion touching on the acts of lasciviousness subject matter of another case before another court.
The Court sustained the objection. Section 6, Rule 132, Revised Rules on Evidence provides that "the witness may be
cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with
42
sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias or the reverse,
and to elicit all important facts bearing upon the issue."
The witness testified only on the rape case. She did not testify anything about acts of lasciviousness committed upon
her person. She may not therefore be questioned on this matter because it is not connected with her direct testimony or
has any bearing upon the issue. To allow adverse party to cross-examine the witness on the acts of lasciviousness which
is pending trial in another court and which the witness did not testify is improper.
Questions concerning acts of lasciviousness will not in any way test the accuracy and truthfulness and freedom from
interest or bias or the reverse. On the contrary such questions, if allowed, will unduly burden the court with immaterial
testimonies.25
In another order, dated January 13, 1998, the trial court gave accused-appellant’s counsel 20 days within which to elevate its ruling
to the appellate court.26 The records reveal, however, that no such petition was filed by Atty. Mangalindan as regards this particular
matter.
The question, therefore, is whether the trial court correctly disallowed accused-appellant’s counsel from questioning complainant
as regards the other supposed acts of lasciviousness contained in her sworn statement. On this point, Rule 132, §6 of the Revised
Rules on Evidence provides:
Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any
matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest, bias or the reverse and to elicit all important facts bearing upon the issue.
The right of a party to cross-examine a witness is embodied in Art. III, §14(2) of the Constitution which provides that the accused
shall have the right to meet the witnesses face to face and in Rule 115, §1(f) of the Revised Rules of Criminal Procedure which
states that, in all criminal prosecutions, the accused shall have the right to confront and cross-examine the witnesses against
him.27 The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the
truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial
matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the
accused to confront the witnesses against him.28
The right of the accused to cross-examine a witness is, however, not without limits but is subject to the rules on the admissibility
and relevance of evidence. Thus, in People v. Zheng Bai Hui,29 this Court upheld the ruling of the trial judge disallowing the
questions propounded by the accused’s counsel on the ability of the arresting officer to distinguish
between tawas and shabu without a laboratory examination, the academic degree of his training instructor, and the officer’s
authorship of books on drug identity and analysis for being irrelevant, improper, and impertinent.
In this case, accused-appellant’s counsel argued that his questions to Erlanie on the other acts of lasciviousness supposedly
committed by accused-appellant against her were for the purpose of testing her credibility. There was, however, no showing on
his part how these questions had any bearing on complainant’s credibility or on the truth of her claims. One is led to suspect that
the purpose of these questions was to confuse complainant into committing mistakes in her answers during cross-examination that
accused-appellant’s counsel could later use to possibly put complainant’s credibility, not to mention her character, in question.
Accused-appellant insists that his counsel should have been allowed to ask questions in relation to the sworn statement executed
by complainant. He cites Rule 132, §17 of the Revised Rules of Evidence which provides that:
When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the
same subject matter may be inquired into by the other.
Neither can this rule be invoked to justify the questioning of complainant which the trial court did not allow. As the above provision
states, this rule applies to parts of "an act, declaration, conversation, writing or record" which is given in evidence.
Indeed, the records show that after Erlanie had finished with her direct examination on November 25, 1997, the trial judge granted
the motion made by Atty. Anselmo Mangalindan, accused-appellant’s private counsel, to postpone Erlanie Rivera’s cross-
examination to allow him time to secure copies of the transcript of stenographic notes of Erlanie’s testimony and thus enable him
to fully question complainant.30 Erlanie was first cross-examined on December 2, 1997, but several postponements, namely, on
January 13, 1998,31 February 10, 1998,32 March 12, 1998,33 March 31, 1998,34 April 7, 1998,35 May 12, 1998,36 May 26,
1998,37 May 28, 1998,38 and June 11, 1998,39 on Erlanie’s cross-examination took place because of the failure of Atty.
Mangalindan to appear on the said trial dates. Erlanie’s cross-examination was continued on July 14, 1998 and July 23, 1998. Her
cross-examination by accused-appellant’s counsel was thorough and covered various subjects, such as the nature of the relationship
between her parents, who were present during the execution of her sworn statement, whether the same had been executed by her
voluntarily, the date when she was raped by accused-appellant the reason for her delay in reporting the rape committed by accused-
appellant, her understanding of Tagalog, who were with her in the house at the time of the rape, the details surrounding the rape
committed against her, and her age. It is evident that accused-appellant and his counsel were given ample opportunity to conduct
the cross-examination of Erlanie Rivera in order to test her truthfulness.
B. The record shows that because accused-appellant’s private counsel was not present when Dr. Barin testified, Atty. Eddie Bansil
was appointed by the trial court as accused-appellant’s counsel de oficio for that particular hearing. Atty. Bansil moved for the
postponement of the witness’ cross-examination, but the trial court denied his request because, on the one hand, accused-appellant
was a detention prisoner and Dr. Barin was a very busy person, while, on the other hand, Atty. Bansil had heard the testimony of
the said witness. Atty. Bansil then decided not to cross-examine Dr. Barin.40
Accused-appellant now contends that the trial judge denied the motion of Atty. Bansil for postponement because he was biased
against him. Accused-appellant claims that the counsel de oficio was not familiar with the facts of his case and was thus in no
position to cross-examine Dr. Barin.
While the Constitution recognizes the accused’s right to competent and independent counsel of his own choice, his option to secure
the services of a private counsel is not absolute. For considering the State’s and the offended party’s right to speedy and adequate
justice, the court may restrict the accused’s option to retain a private counsel if the accused insists on an attorney he cannot afford,
or if the chosen counsel is not a member of the bar, or if the attorney declines to represent the accused for a valid reason. 41
The trial court appointed Atty. Bansil a counsel de oficio to represent accused-appellant on October 6, 1998 because his regular
counsel, Atty. Anselmo Mangalindan, was absent without any explanation. Atty. Mangalindan had previously been granted several
postponements. As this Court ruled in another case:
. . . Courts are not required to wait indefinitely the pleasure and convenience of the accused as they are also mandated
to promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with
the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was adequately
represented by counsels who were not shown to be negligent, incompetent or otherwise unable to represent him. 42
Atty. Bansil was present and heard the testimony of Dr. Barin, the prosecution witness, on that day. Dr. Barin’s testimony on direct
examination was simple, containing primarily a discussion of her findings on the hymenal laceration sustained by complainant.
Her testimony did not require considerable study and extraordinary preparation on the part of defense counsel for the purpose of
cross-examination. It seems Atty. Bansil no longer found it necessary to cross-examine Dr. Barin.
Moreover, beyond stating that Dr. Barin was a vital witness, accused-appellant has not indicated what questions his counsel wanted
to ask from Dr. Barin. It may well be that these questions do not exist at all and that the importance given by accused-appellant to
counsel de oficio’s failure to cross-examine the witness is exaggerated. Indeed, a medical examination of the victim, together with
the medical certificate, is merely corroborative and is not an indispensable element of rape. 43 The primordial issue in this case
remains to be whether the complainant’s testimony, not Dr. Barin’s, established beyond reasonable doubt the crime of rape.
43
C. Accused-appellant likewise points to the trial judge’s questions propounded to him during his cross-examination as an indication
of the latter’s partiality for the prosecution.
We find no merit in this contention. Where the trial court is judge both of the law and of the facts, it is oftentimes necessary in the
due and faithful administration of justice for the presiding judge to re-examine a witness so that his judgment, when rendered, may
rest upon a full and clear understanding of the facts.44 Our reading of the transcript of stenographic notes in this case shows that
the trial judge merely wanted to clarify certain points relating to the defense of accused-appellant and not to establish his guilt. It
is a judge’s prerogative to ask questions to ferret out the truth. 45 It cannot be taken against him if the questions he propounds
reveals certain truths which, in turn, tend to destroy the theory of one party. 46 As this Court held:
In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth
and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire
to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a
reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record
speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in
the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper
question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion,
he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the
willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound
clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant
and material testimony though that testimony may tend to support or rebut the position taken by one or the other party.
. .47
D. We also find no merit in accused-appellant’s argument that he was denied due process considering the speed with which the
trial court rendered judgment against him, which judgment was promulgated one day after he filed his memorandum.
The decision rendered by the trial court gives a clear account of the facts and the law on which it is based. It discusses in full the
court’s findings on the credibility of both the prosecution and defense witnesses and its evaluation of the evidence of both parties.
What we said in the analogous case of People v. Mercado48 applies to this case:
. . . A review of the trial court’s decision shows that its findings were based on the records of this case and the transcripts
of stenographic notes during the trial. The speed with which the trial court disposed of the case cannot thus be attributed
to the injudicious performance of its function. Indeed, a judge is not supposed to study a case only after all the pertinent
pleadings have been filed. It is a mark of diligence and devotion to duty that a judge studies a case long before the
deadline set for the promulgation of his decision has arrived. The one-day period between the filing of accused-
appellants’ memorandum and the promulgation of the decision was sufficient time to consider their arguments and to
incorporate these in the decision. As long as the trial judge does not sacrifice the orderly administration of justice in
favor of a speedy but reckless disposition of a case, he cannot be taken to task for rendering his decision with due
dispatch. . .
II. Coming now to the merits of this case, we find that the evidence proves beyond reasonable doubt the guilt of accused-appellant.
In reviewing rape cases, we have been guided by the following principles: (a) An accusation for rape is easy to make, difficult to
prove, and even more difficult to disprove; (b) In view of the intrinsic nature of the crime, the testimony of the complainant must
be scrutinized with extreme caution; and (c) The evidence for the prosecution must stand on its own merits and cannot draw
strength from the weakness of the evidence for the defense. 49
A. Well-settled is the rule that the lone testimony of a rape victim, by itself, is sufficient to warrant a judgment of conviction if
found to be credible. It has likewise been established that when a woman declares that she has been raped she says in effect all that
is necessary to mean that she has been raped, and where her testimony passes the test of credibility the accused can be convicted
on the basis thereof. This is because from the nature of the offense, the sole evidence that can usually be offered to establish the
guilt of the accused is the complainant’s testimony.50
Considering complainant’s tender age, her shy demeanor, and manner of testifying in court, the trial court found Erlanie’s
testimony to be straightforward, natural, and convincing and accorded the same full faith and credit. 51
Complainant told the court how she was awakened because accused-appellant kissed her and fondled her breasts. She narrated that
she tried to resist accused-appellant’s advances by pushing and kicking him, but the latter succeeded in ravishing her. She told of
how her father threatened to kill her mother and her siblings if she reported the incident. Despite the lengthy cross-examination of
accused-appellant’s counsel, she remained firm and steadfast in her story of how she was raped by her father. Her narration not
only rings true and sincere but is consistent and unshaken on its material points. Complainant’s testimony is fully corroborated by
the medical findings of Dr. Barin who examined complainant shortly after she had been raped. She found complainant to have
suffered a hymenal laceration at the 3 o’clock position which could have been caused by the penetration of a hard object, such as
a male organ.
Complainant’s failure to remember the date of the commission of the rape cannot be taken against her. The exact date when
complainant was sexually abused is not an essential element of the crime of rape.52 Nor does the fact that complainant was sleeping
beside her sister when the rape occurred detract from her credibility. The possibility of rape is not negated by the fact that the
presence of even the whole family of the accused inside the same room produced the possibility of discovery. For rape to be
committed, it is not necessary for the place to be ideal, for rapists respect neither time nor place for carrying out their evil designs.53
In sum, accused-appellant failed to show any reason why this Court should disbelieve complainant’s testimony. Indeed, the gravity
of filing a case for incestuous rape is of such a nature that a daughter’s accusation must be taken seriously. It is against human
experience for a girl to fabricate a story which would drag herself and her family to a lifetime of dishonor, unless it is the truth.
More so when her charge could mean the execution of her own father, as in this case. 54
Accused-appellant’s counsel on cross-examination made much of the discrepancy between complainant’s sworn statement where
she stated that accused-appellant slept beside her mother after the rape55 and her testimony that her mother returned home from
the hospital only the day after the rape took place.56 It must be pointed out, however, that discrepancies between a witness’ affidavit
and his testimony in open court does not necessarily impair his credibility. Affidavits, which are taken ex parte, are often
incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.57
Moreover, whether accused-appellant slept alone or with complainant’s mother after committing the rape of complainant is of no
moment as it is a minor point that does not reflect on the commission of the crime itself. The rule is that discrepancies and
inconsistencies on minor matters neither impair the essential integrity of the prosecution evidence as a whole nor reflect on the
witness’ honesty. Such inconsistencies may in fact strengthen rather than weaken the credibility of the witness as they erase any
suspicion of rehearsed testimony.58
Accused-appellant contends that complainant could not have been raped on March 1 or 2, 1997, the dates when her sister Zaira
was hospitalized, because she had her last menstrual period on March 3, 1998 and thus she could not have gotten pregnant as a
result of the rape. He argues that a woman who had her monthly period cannot be impregnated as a result of sexual intercourse
five days before or five days after her last menstruation.59
Accused-appellant does not, however, cite any legal or medical authority for his thesis, except what he claims to be common
knowledge. On the other hand, we have previously held that it is hard to ascertain the exact date of fertilization inasmuch as more
than two weeks is considered to be the life span of the spermatozoa in the vaginal canal. 60 Hence, even granting that complainant
could not have been impregnated by accused-appellant during the period alleged by him, it remains possible for complainant to
have gotten pregnant afterwards. More importantly, it must be emphasized that pregnancy is not an element of the crime of rape
and is, therefore, totally immaterial to the question of accused-appellant’s guilt.61 In other words, accused-appellant being the cause
of complainant’s pregnancy is a non-issue in the prosecution of the crime of rape. What should not be lost sight of is the fact that
complainant’s testimony constitutes proof beyond reasonable doubt that accused-appellant had carnal knowledge of her without
her consent, and such fully established the crime of rape.
B. Accused-appellant imputes ill motive on the part of complainant’s mother and her relatives for bringing charges against him.
He claims that complainant’s mother resented the fact that he used to beat her up out of jealousy and that he had several paramours
44
in the past. He further asserts that his wife’s relatives were angry with him because of the land which he caused to be registered in
his name to the prejudice of the latter.
This allegation is without merit. Accused-appellant makes it appear that complainant’s mother was responsible for the filing of
this case against him. This is not so. For that matter, his wife did not testify against him. It was his daughter, complainant, alone
who denounced him in court.
Accused-appellant’s claim that the motivation for the filing of this case was the animosity of his wife’s relatives towards him
caused by his land-grabbing of their land is likewise without any basis. It may be that his wife’s relatives took advantage of his
incarceration and made him sign his waiver of rights over the land.62 But this does not necessarily mean they conspired to persecute
him. It is noteworthy that accused-appellant never claimed that the document which he signed (Exh. 3) existed before the filing of
the criminal complaint against him or that his wife’s relatives fabricated the charge against him because of his failure to sign the
same.
Indeed, what accused-appellant’s defense cannot explain is the hymenal laceration sustained by complainant or the steadfastness
she has exhibited in pursuing the charge against her own father. It is doubtful that complainant would let herself be embroiled in
a petty family dispute in exchange for her honor and dignity. We cannot believe that a young girl, like complainant, would invent
a sordid tale of sexual abuse by accused-appellant unless it was the truth.63 Where there is no evidence to show a doubtful reason
or improper motive why a prosecution witness should testify against the accused or falsely implicate him in a crime, her testimony
is trustworthy.64
Accused-appellant also raises the defense of denial and alibi. But the bare denial of accused-appellant cannot overcome the positive
declarations of complainant. Denial, when unsubstantiated by clear and convincing evidence, constitutes negative self-serving
evidence which deserves no greater evidentiary value than the testimony of a credible witness who testified on affirmative
matters.65
Accused-appellant’s sister, Concepcion Sayo, testified that accused-appellant lived with her family in Bulacan at the time of the
rape. No other witness not related to accused-appellant, however, was called to corroborate her claim. We have already held that
the defense of alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons. It is not
improbable that these witnesses would freely perjure themselves for the sake of their loved ones. 66 Accused-appellant’s defense
thus fails to convince this Court.
C. The foregoing discussion notwithstanding, we think that the imposition of the death penalty by the trial court is erroneous. It is
settled that to justify the imposition of the death penalty, both the relationship of the victim and her age must be alleged and
proved.67 Thus, in People v. Javier,68 where the victim was alleged to be 16 years old at the time of the commission of the rapes,
it was held:
. . . Although the victim’s age was not contested by the defense, proof of age of the victim is particularly necessary in
this case considering that the victim’s age which was then 16 years old is just two years less than the majority age of
18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year old one insofar
as physical features and attributes are concerned. A physically developed 16-year old lass may be mistaken for an 18-
year old young woman, in the same manner that a frail and young-looking 18-year old lady may pass as a 16-year old
minor. Thus, it is in this context that independent proof of the actual age of a rape victim becomes vital and essential
so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying
circumstances enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the
extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime
with which an accused is charged must be established by the prosecution in order for said penalty to be upheld.
A duly certified certificate of live birth showing complainant’s age, or some other official document on record, such as a school
record, has been recognized as competent evidence.69
In this case, although complainant’s minority has been alleged in the information, no independent evidence was presented by the vs.
prosecution to prove the same. Complainant did not even state her age at the time of the rape during direct examination; it was JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.
only during her cross-examination when she stated that she was 12 years old at the time she was raped by her father. 70
VITUG, J.:
Nor was her birth certificate or baptismal certificate or any school record presented by the prosecution to prove the age of Erlanie
at the time of the rape. Not even her mother, whose testimony could have been sufficient to prove the age of complainant,71 testified
The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E.
in this case. What was relied upon by the trial court was that fact that the age of the victim was undisputed by the defense. 72 It also
Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind
took judicial notice of the victim’s minority on account of her appearance.73
of access to the proceedings.

We do not agree with this conclusion. The trial court can only take judicial notice of the victim’s minority when the latter is, for
On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and
example, 10 years old or below. Otherwise, the prosecution has the burden of proving the victim’s age at the time of the rape and
authorized television and radio networks throughout the country, sent a letter requesting this Court to allow live media coverage
the absence of denial on the part of accused-appellant does not excuse the prosecution from discharging its burden. 74 In a similar
of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the
case, People v. Tundag,75 in which the trial court took judicial notice of the minority of the victim who was alleged to be 13 years
Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history."2 The
old, we ruled:
request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato
Cayetano and Attorney Ricardo Romulo.
In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s admission, thereof
acceding to the prosecution’s motion. As required by Section 3 of Rule 129, as to any other matters such as age, a
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition,3 submitting the following
hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven
exegesis:
by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were
lost or destroyed, by other documentary or oral evidence sufficient for the purpose.
"3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his
family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter
The prosecution having failed to present evidence as to complainant’s age, accused-appellant can be convicted only of simple rape,
of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made
for which the penalty is reclusion perpetua.
aware of.

Consequently, the award of civil indemnity in the amount of P75,000.00 made by the trial court cannot be sustained. Such amount
"4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in
can only be awarded if the crime of rape was effectively qualified by any of the circumstances under which the death penalty is
the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the
authorized by the applicable amendatory laws.76 Accordingly, the civil indemnity awarded to complainant must be reduced to
concomitant court proceedings.
P50,000.00 in consonance with current rulings.77

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the
The award of moral damages in the amount of P50,000.00 to complainant is correct. Moral damages is awarded in rape cases
desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime
without need of showing that the victim suffered from mental, physical, and psychological trauma as these are too obvious to
of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to railroad the instant
require recital by the victim during trial.78
criminal cases against the Former President Joseph Ejercito Estrada."4

In addition to the damages given by the trial court, exemplary damages in the amount of P25,000.00 should likewise be awarded
Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting
in favor of complainant. Accused-appellant being the father of complainant, such relationship can be appreciated as a generic
the nation.
aggravating circumstance warranting the award of exemplary damages. In rapes committed by fathers against their daughters, such
award may be imposed to serve as a deterrent to other parents similarly disposed to commit the same crime. 79
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then
President Corazon C. Aquino. The resolution read:
WHEREFORE, the decision of the Regional Trial Court, Branch 49, Guagua, Pampanga, finding accused-appellant guilty of the
crime of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion
perpetua and to pay complainant Erlanie Rivera the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and "The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the
P25,000.00 as exemplary damages. courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely.

A.M. No. 01-4-03-S.C. June 29, 2001 "While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on
Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the
presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES
of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the
AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA.
courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be
treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR the orderly and serious quest for truth for which our judicial proceedings are formulated.
SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners,

45
 "Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial
while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same
privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom.
"In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an
inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark
identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses,
the trial judge and the defendant. The decision in part pertinently stated:
"Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be
frightened, play to the camera, or become nervous. They are subject to extraordinary out-of court influences
which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to
avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings
also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form
of mental harassment and subjects him to excessive public exposure and distracts him from the effective
presentation of his defense. 1âwphi1.nêt
'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused
and his case in the eyes of the public.'
"Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them
to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other
member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy
the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due
process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet
of reporters and photographers each time he enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly
administration of justice, and considering further that the freedom of the press and the right of the people to information
may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of
court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and
limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement
of official proceedings. No video shots or photographs shall be permitted during the trial proper.
" Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the
proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and
television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and
restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the
quest for truth. 5 Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The
Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment
trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that
would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of
the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along
with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. 6
When these rights race against one another, jurisprudence7 tells us that the right of the accused must be preferred to win.
46
With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely
certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only
after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or
subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper
influence,8 and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its
individual settings nor made an object of public's attention9 and where the conclusions reached are induced not by any outside
force or influence10 but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume
firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior
of the people it focuses on."11
Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the
shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious
or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated
but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.12 It might be farcical to build around
them an impregnable armor against the influence of the most powerful media of public opinion. 13
To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of
the mind so indispensable to the calm and deliberate dispensation of justice can create. 14 The effect of television may escape the
ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be
held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that
his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only
implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum
and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the
public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial
participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.16
The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of
media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in
acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still
the paramount right of the accused to due process17 which must never be allowed to suffer diminution in its constitutional
proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important
function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance
of absolute fairness in the judicial process."18
This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States Supreme Court holding the television
coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being
likely prejudices:
"1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial
judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes
interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in
the public press and the accused is highly publicized along with the offense with which he is charged. Every juror
carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every
criminal case. x x x.
 "2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge
that he is being viewed by a vast audience is Simply incalculable. Some may be demoralized and frightened, some
cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement
may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant
to appear and thereby impede the trial as well as the discovery of the truth.
"3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge.
His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention.
xxx
"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if
not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and
expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to
concentrate on the proceedings before him -sometimes the difference between life and death -dispassionately, freely
and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day
in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and
television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous
potentialities for intruding upon the detached atmosphere that should always surround the judicial process. 21
The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and
radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on
exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty
of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial
could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of
the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice
but will only pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial
courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action
either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part
of the judge.
En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court
effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the
matter, and when it did in its 23rd October resolution, it confirmed, in disallowing live television and radio coverage of court
proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in
the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion really in point?
In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order restraining news media from
publishing accounts of confession or admissions made by the accused or facts strongly implicating him. The order was struck
down. In Richmond Newspaper; Inc., vs, Virginia,23 the trial judge closed the courtroom to the public and all participants except
witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were historically
open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a Massachusetts law that required trial judges to
exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary sought to overturn their conviction
before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the
constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with
47
technological advances in the television equipment but inhered, rather, in the hypothesis that the mere presence of cameras and
recording devices might have an effect on the trial participants prejudicial to the accused." 26
Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their
proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of
the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of
EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and
risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to turn a blind
eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in
the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution
of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to
only adjudicate justiciable controversies on the basis of what alone is submitted before them. 27 A trial is not a free trade of ideas,
Nor is a competing market of thoughts the known test of truth in a courtroom.28
The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any
person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are
aptly addressed, is a price too high to pay.
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from
the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case
at bar involves the rights to life, liberty and security in the first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 191 of the Rule on the Writ
of Amparo, seeking to reverse and set aside on both questions of fact and law, the Decision promulgated by the Court of Appeals
in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2 filed before this Court
by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers
and agents from depriving them of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies,
Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs
under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated
August 24, 2007, we (1) ordered the Secretary of the Department of National Defense and the Chief of Staff of the AFP, their
agents, representatives, or persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical Unit
(CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting,
curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section
14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. Forthwith,
therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified
return within the period provided by law and containing the specific matter required by law; (3) they be granted the interim reliefs
allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court,
after hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of
Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the petition to
the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on the
petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein respondents), the dispositive
portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and
unofficial reports of the investigation undertaken in connection with their case, except those already on file
herein;
2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and
Donald Caigas within five days from notice of this decision.
3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment
given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and
(sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007
within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of Staff or his
duly authorized deputy, the latter's authority to be express and made apparent on the face of the sworn compliance with
this directive.
10
SO ORDERED.
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso, Bulacan.
Respondents were not able to attend as they were not informed of the gathering, but Raymond saw some of the soldiers when he
passed by the barangay hall.11
48
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots, entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his mother to follow him,
but three soldiers stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz,
and "Pula" de la Cruz, who all acted as lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being
forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers
and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded, he saw the faces of
the soldiers who took him. Later, in his 18 months of captivity, he learned their names. The one who drove the van was Rizal
Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader of the team who entered his house
and abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his abductors was "George" who was
tall, thin, white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van and made to sit beside Raymond. Both of them were
beaten up. On the road, he recognized the voice of the person beside him as his brother Reynaldo's. The van stopped several times
until they finally arrived at a house. Raymond and Reynaldo were each brought to a different room. With the doors of their rooms
left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with
the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room and it was his (Raymond's)
turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's Army. Each time he said
he was not, he was hit with the butt of their guns. He was questioned where his comrades were, how many soldiers he had killed,
and how many NPA members he had helped. Each time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up would salute them, call
them "sir," and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when
they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the
other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke
in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents'
abduction.16 While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat
him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually
with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him up. They doused him
with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the
mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly
breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned
Raymond that they would come back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on
him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and
jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some
women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay. 19 He
reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him.
They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and
hit with chains until his back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying
that she wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay
where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the wounds were almost
healed, the torture resumed, particularly when respondents' guards got drunk. 21
Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars. He stayed all the time
in that small room measuring 1 x 2 meters, and did everything there, including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22 had been detained in that bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a small house with two
rooms and a kitchen. One room was made into the bartolina. The house was near the firing range, helipad and mango trees. At
dawn, soldiers marched by their house. They were also sometimes detained in what he only knew as the "DTU." 24
At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine samples and marked
them. When asked how they were feeling, they replied that they had a hard time urinating, their stomachs were aching, and they
felt other pains in their body. The next day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents' urine test and advised them
to drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines were sent through
the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks.
While there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take care of them. 25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other armed men wearing fatigue
suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-
storey house. Hilario and Efren stayed with them. While there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo. They were detained in a
big unfinished house inside the compound of "Kapitan" for about three months. When they arrived in Sapang, Gen. Palparan talked
to them. They were brought out of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan
was already waiting, seated. He was about two arms' length away from respondents. He began by asking if respondents felt well
already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He then
asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond responded that he would not be because
he did not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang lahat ng
sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right
dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si
Bestre na sumuko na sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about 3:00 in the morning,
Hilario, Efren and the former's men - the same group that abducted them - brought them to their parents' house. Raymond was
shown to his parents while Reynaldo stayed in the Revo because he still could not walk. In the presence of Hilario and other
soldiers, Raymond relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario
threatened Raymond's parents that if they continued to join human rights rallies, they would never see their children again. The
respondents were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four "masters" who were
there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle.
49
Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he
left for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them strong. He also said that
they should prove that they are on the side of the military and warned that they would not be given another chance. 31 During his
testimony, Raymond identified Gen. Palparan by his picture. 32
One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine, named "Alive," was
green and yellow. Raymond and Reynaldo were each given a box of this medicine and instructed to take one capsule a day. Arman
checked if they were getting their dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy
upon waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed Raymond that while in
Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he
saw again Ganata, one of the men who abducted him from his house, and got acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was brought to Camp Tecson under the 24 th Infantry Battalion. He was fetched by
three unidentified men in a big white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his
blindfold was removed. Chains were put on him and he was kept in the barracks. 35
The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was then he learned that he
was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean
inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture
and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was
made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeño and
Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose name they later came to know as Donald
Caigas, called "master" or "commander" by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed,
but were put back on at night. They were threatened that if they escaped, their families would all be killed. 37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still
alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were brought to
their parents to instruct them not to attend the hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed
to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry
Battalion whose names and descriptions he stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24 th Infantry
Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the
battalion stayed with them. While there, battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in
the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook,
and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him and Manuel with them
to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the
killing of an old man doing kaingin. The soldiers said he was killed because he had a son who was a member of the NPA and he
coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in
a house where NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared him and
killed only his son right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near the sea. Caigas
and some of his men stayed with them. A retired army soldier was in charge of the house. Like in Limay, the five detainees were
made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to
detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang kanyang baril,
at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig, walang nangyari.
Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang
katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala
sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang
nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo, piniringan,
ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya
tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick up trak,
dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa
Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan.
Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo
ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita
kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na
kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi ni
Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni
Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry for Donald (Caigas).
Caigas told respondents to also farm his land, in exchange for which, he would take care of the food of their family. They were
also told that they could farm a small plot adjoining his land and sell their produce. They were no longer put in chains and were
instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal,
Laguna.44
Respondents started to plan their escape. They could see the highway from where they stayed. They helped farm adjoining lands
for which they were paid Php200.00 or Php400.00 and they saved their earnings. When they had saved Php1,000.00 each,
Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange text messages with a girl who lived nearby.
50
A phone was pawned to him, but he kept it first and did not use it. They earned some more until they had saved Php1,400.00
between them.
There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the guards. Respondents' house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking
session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice, Raymond
and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking dogs. They boarded a bus bound
for Manila and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related to matters they witnessed
together. Reynaldo added that when they were taken from their house on February 14, 2006, he saw the faces of his abductors
before he was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18 months he was detained.
When Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed
members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched in the face
until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated from Raymond and
brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in
the vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of "Alive" in different
houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to
remove the blindfold once outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in
forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations,
particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents
after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that
the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The examination was
conducted on August 15, 2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr. Molino
took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the October 25, 2007 Resolution
of the Court, they filed a Return of the Writ of Amparo admitting the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained, held
incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in the habeas
corpus case filed in their behalf by petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against
M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as
Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding
General of the Philippine Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely:
Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals dropped as party respondents
Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September 19, 2006,
Maj. (sic) Jovito S. Palparan, then Commanding General, 7 th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal
involvement in the taking of the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of the
Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo brothers and
ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of National Defense, which
attested that he assumed office only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not engage in actual military directional operations, neither does he
undertake command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The
principal responsibility of the Secretary of National Defense is focused in providing strategic policy direction to the
Department (bureaus and agencies) including the Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief
of Staff, AFP to institute immediate action in compliance with Section 9(d) of the Amparo Rule and to submit report
of such compliance... Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy
directive addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action in the event the
Writ of Amparo is issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or
practice that may have brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death or disappearance; and
49
(6) to bring the suspected offenders before a competent court.
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ, attesting that he
received the above directive of therein respondent Secretary of National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued directive
to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent
reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters and/or direct
the immediate conduct of the investigation on the matter by the concerned unit/s, dispatching Radio Message on
November 05, 2007, addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA
and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned unit relative
to the circumstances of the alleged disappearance of the persons in whose favor the Writ of Amparohas been sought for
as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ of Amparo (G.R.
No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño pending before the Supreme Court.
51
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding
circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel
if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when
warranted by the findings and the competent evidence that may be gathered in the process. 50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No.
179994, another Amparo case in this Court, involving Cadapan, Empeño and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24 th Infantry Batallion detachment as detention area, I
immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any
detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24 th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay,
Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales
also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño and Manuel Merino were detained. As per
the inquiry, however, no such beachhouse was used as a detention place found to have been used by armed men to
detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.),
M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein petitioners could not be secured in time for the
submission of the Return and would be subsequently submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7 th Infantry
Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan. 53 The 24th Infantry Battalion is part of the
7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7 th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of the respondents by CAFGU auxiliaries
under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA
Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to determine:
(1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2)
the administrative liability of said auxiliaries, if any.57 Jimenez testified that this particular investigation was initiated not by a
complaint as was the usual procedure, but because the Commanding General saw news about the abduction of the Manalo brothers
on the television, and he was concerned about what was happening within his territorial jurisdiction. 58
Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an
investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and finished at 10:00 in the evening.60 The
investigating officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned and
investigated61 as according to Jimenez, the directive to him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements. 63 The six persons were not known to Jimenez as it was in fact his
first time to meet them.64 During the entire time that he was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six persons. 65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements indicated that they were signed on May 29, 2006. 66 When the
Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon
of May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially
quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken
from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified
armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for
Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula
Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit
(CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that he was at
Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby
his residence, together with some neighbor thereat. He claims that on 15 February 2006, he was being informed by
Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation
that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that they claimed
that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any
participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of being an
NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers and for
accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete
chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on
other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied
any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is a resident
of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That
being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER BESTRE" TN:
Rolando Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San
Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place.
He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal
charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and
for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on
the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a resident of
Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that
on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed
only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by
alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there
are those people who are angry with their family particularly victims of summary execution (killing) done by their
brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE
who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement
on the abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San
Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA
leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of
the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that
his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based
at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and
Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they
are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an
NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their place and he learned only about the incident which is the abduction of
Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about
the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and
he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a
CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged
abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that
incident is considered doubtful, hence, no basis to indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy
and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the
ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that
the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first
place, they were in connivance with the abductors. Being their neighbors and as members of CAFGU's, they ought to
be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were
fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges of abduction committed by the above
named respondents has not been established in this investigation. Hence, it lacks merit to indict them for any
administrative punishment and/or criminal liability. It is therefore concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians
Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case.

52
 8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing evidence and assail the
December 26, 2007 Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL
FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT
RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS
(HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF
APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN
CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM
IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL
MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE
A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its
beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a two-day National
Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17, 2007. The
Summit was "envisioned to provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal killing and enforced
disappearances."73 It was an exercise for the first time of the Court's expanded power to promulgate rules to protect our people's
constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the
martial law regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." 75 On the other hand,
"enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government;
the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de
Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of the practice of
judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio Rejón, drafted a constitutional
provision for his native state, Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:
53
The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted
to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive
powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation,
making no general declaration concerning the statute or regulation that motivated the violation. 80
Since then, the protection has been an important part of Mexican constitutionalism. 81 If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the official, or the official's superiors, to cease the violation and to
take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire nation.82
The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the
particular needs of each country.83 It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of
Mexico's self-attributed "task of conveying to the world's legal heritage that institution which, as a shield of human dignity, her
own painful history conceived."84 What began as a protection against acts or omissions of public authorities in violation of
constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom, equivalent to
the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for
the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform process. 85
In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect against human rights
abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to
protect the whole gamut of constitutional rights, including socio-economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or
fundamental rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the
above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a
similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803
case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under
Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,90 these remedies may not be adequate to address
the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition
for a writ of Amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof.
The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable
doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence
that will require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in
that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action.
In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and
enforced disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary Restraining Order" 92 to stop
petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other basic rights on August
23, 2007,93 prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII,
Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on
October 24, 2007, they moved to have their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in disputing the Decision of the
Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible
uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein
respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of action, to determine whether
the evidence presented is metal-strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by substantial
evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.
(emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents'
harrowing experience and tenacious will to escape, captured through his different senses and etched in his memory. A few
examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel." 97 "May naiwang mga
bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan
kung saan ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha
ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100
54
We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents)
to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house
through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the
CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also
CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were
Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long
captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7 th Infantry
Division, Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or
sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando,
the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The
investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU
auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the
participation of military personnel, but even then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the petitioners'
captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and
told them what he wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal role in
the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long
captivity at the hands of military personnel under his command bespoke of his indubitable command policy that
unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without
probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-
Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing evidence to establish
that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilario's involvement could not,
indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners
were boarded and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at rollo,
p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners were brought
away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a
week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to
Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they
were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face
with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners'
parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore
rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies
to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants
(the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen.
Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions
when the petitioners saw that Hilario had a direct hand in their torture.
 It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was
established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was
similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for,
indeed, the evidence of their participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated by other independent and
credible pieces of evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit of respondent Reynaldo
Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture they endured while in detention.
Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony
and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104 firms up respondents' story that they were detained for
some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the Commission considered
similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the
Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commission's findings
of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her
ordeal.106 These statements were supported by her recognition of portions of the route they took when she was being driven out of
the military installation where she was detained.107 She was also examined by a medical doctor whose findings showed that the
111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and
torture she suffered while in detention.108
With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds
that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account
will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by
other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they
were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them
comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel that the enforced
disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and
surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not
"free in every sense of the word"109 as their "movements continue to be restricted for fear that people they have named in their
Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way.
These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents'
rights to life, liberty and security."110 (emphasis supplied) Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point out that this right is "often associated with liberty;" it is also
seen as an "expansion of rights based on the prohibition against torture and cruel and unusual punishment." Conceding that there
is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places112 fall under the general coverage of the right to security
of person under the writ of Amparo." They submit that the Court ought to give an expansive recognition of the right to security of
person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of
every human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation of the right to security
of person, respondents cite the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if
there is no undue restraint by the State on the exercise of that liberty"114 such as a requirement to "report under unreasonable
restrictions that amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116
55
In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of
their right to security.
Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right
to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which
provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge...
At the core of this guarantee is the immunity of one's person, including the extensions of his/her person - houses, papers, and
effects - against government intrusion. Section 2 not only limits the state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person himself.117 The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of
private security in person and property and unlawful invasion of the security of the home by officers of the law acting
under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York,
192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and
happiness and to the peace and security of every individual, whether it be of home or of persons and
correspondence. (Tañada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional
inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute
as nothing is closer to a man's soul than the serenity of his privacy and the assurance of his personal security.
Any interference allowable can only be for the best causes and reasons. 119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon which the enjoyment of
all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: "The life to
which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of
his person and property. The ideal of security in life and property... pervades the whole history of man. It touches every aspect of
man's existence."122 In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of
his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires of the individual."123
A closer look at the right to security of person would yield various permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human
Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate
that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right.124 It is the
"right to security of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political
Rights (ICCPR) also provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established
by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the
same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the
stimulus. Thus, in the Amparo context, it is more correct to say that the "right to security" is actually the "freedom from
threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the earlier part of the provision. 127
Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II
of the 1987 Constitution guarantees that, as a general rule, one's body cannot be searched or invaded without a search
warrant.128 Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of
physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a person.129
Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to
force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological
integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more
specifically proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against
him (any person under investigation for the commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not involving invasion of bodily
integrity - nevertheless constitute a violation of the right to security in the sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an
offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these
degradations.
An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of
Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained, alleged
that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the
European Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases supplied)
Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman or degrading treatment or
punishment." Although the application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied heavily
on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could
reasonably have been expected to take measures in order to ensure his security and to investigate the circumstances in
question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to
conduct an effective investigation into his allegations.131 (emphasis supplied)
56
The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the
bodily integrity of women may also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms
under general international law or under specific human rights conventions is discrimination within the meaning of
article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and
freedoms include . . . the right to liberty and security of person.132
Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the
writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity)
under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees
full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor of
order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government. 135
This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United
Nations' Human Rights Committee136 in not a few cases involving Article 9137 of the ICCPR. While the right to security of person
appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can
exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee
held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead
to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate
that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right
to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in
the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence
that it was intended to narrow the concept of the right to security only to situations of formal deprivation of
liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an
obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which
would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction
would render totally ineffective the guarantees of the Covenant.139(emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of conscience who
continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases,
the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation
and persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the abduction of the complainant's
husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's
partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting the State
from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. 145 The ECHR
interpreted the "right to security of person" under Article 5(1) of the European Convention of Human Rights in the leading case
on disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not
been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant
suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules
of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable
claim that a person has been taken into custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing
violation of respondents' right to security.
First, the violation of the right to security as freedom from threat to respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In
Raymond's narration, he was tortured and poured with gasoline after he was caught the first time he attempted to escape from Fort
Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that
they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors.
It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in
Limay, Bataan, respondents' captors even told them that they were still deciding whether they should be executed. Respondent
Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na
kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148
The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing
threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their
own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño,
and Manuel Merino, among others.
Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the
threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or
activities.149 Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to
show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion that there
is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty,
security, and life, actionable through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to
provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in
conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners'
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7 th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn
Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was
57
present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question
to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he
issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ
of Amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the
identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements
from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of
the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent
court.150 Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent
Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the
AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents,
and undertook to provide results of the investigations to respondents. 151 To this day, however, almost a year after the policy
directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the
results of the investigation which they now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to
security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the apparent threat to their life,
liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the
ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with
their case, except those already in file with the court.
Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any
treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to include a list of medical
personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the
characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with
prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant
must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific
offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the bare, self-
serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the
relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search
warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of
the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people
such as respondents.
Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the
Rules of Civil Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an action is pending may (a)
order any party to produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...
What the Court decides today has nothing to do with the substance or merits surrounding the aborted deal of the Philippine
government with the National Broadband Network and ZTE Corporation, or any allegation of petitioner Rodolfo Noel "June"
Lozada, Jr., (Lozada) regarding the same. There is only one issue that we decide today – whether circumstances are adequately
alleged and proven by petitioner Lozada to entitle him to the protection of the writ of amparo. Before us is a Petition for Review
on Certiorari of the Decision dated 12 September 2008 of the Court of Appeals (CA), dismissing the Petition for the Issuance of a
Writ of Amparo.1
Petitioner Lozada was the former President and Chief Executive Officer of the Philippine Forest Corporation (PFC), a government-
owned- and -controlled corporation under the Department of Environment and Natural Resources (DENR). 2 Petitioner Violeta
Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo) is his brother.

At the time the Petition for the Writ of Amparo was filed, respondent former President Gloria Macapagal Arroyo (former President
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27, issued a subpoena
Arroyo) was the incumbent President of the Philippines. Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive
duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The
Secretary; Avelino Razon (Razon), the Director General of the Philippine National Police (PNP); Angel Atutubo (Atutubo), the
company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck
Assistant General Manager for Security and Emergency Services of the Manila International Airport Authority; and Rodolfo
down the argument and held that the subpoena pertained to a civil procedure that "cannot be identified or confused with
Valeroso (Valeroso), an agent of the Aviation Security Group (ASG) of the PNP.
unreasonable searches prohibited by the Constitution..."

Antecedent Facts
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the investigations conducted or
to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the
Writ of Amparo has been sought for as soon as the same has been furnished Higher headquarters." The instant Petition stems from the alleged corruption scandal precipitated by a transaction between the Philippine government,
represented by the National Broadband Network (NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of
telecommunications equipment.3 Former National Economic Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri)
With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of assignment of M/Sgt.
sought the services of Lozada as an unofficial consultant in the ZTE-NBN deal.4The latter avers that during the course of his
Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper,
engagement, he discovered several anomalies in the said transaction involving certain public officials. 5 These events impelled the
immaterial, and unnecessary in the resolution of the petition for a writ of Amparo. They add that it will unnecessarily compromise
Senate of the Philippines Blue Ribbon Committee (Blue Ribbon Committee) to conduct an investigation thereon, 6 for which it
and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose
issued a subpoena directing Lozada to appear and testify on 30 January 2008. 7
them to threat of personal injury or even death.

On that date, instead of appearing before the Blue Ribbon Committee, Lozada left the country for a purported official trip to
On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom
London, as announced by then DENR Secretary Lito Atienza (Sec. Atienza). 8 In the Petition, Lozada alleged that his failure to
respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of
appear at the scheduled hearing was upon the instructions of then Executive Assistant Undersecretary Manuel Gaite (Usec.
respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers
Gaite).9 Consequently, the Senate issued an Order dated 30 January 2008: (a) citing Lozada for contempt; (b) ordering his arrest
can be served with notices and court processes in relation to any investigation and action for violation of the respondents' rights.
and detention; and (c) directing the Senate Sergeant-at-Arms to implement the Order and make a return thereon. 10
The list of medical personnel is also relevant in securing information to create the medical history of respondents and make
appropriate medical interventions, when applicable and necessary.
While overseas, Lozada asked Sec. Atienza whether the former could be allowed to go back to the Philippines.11Upon the approval
of Sec. Atienza, Lozada informed his family that he was returning from Hong Kong on 5 February 2008 on board Cathay Pacific
In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal
Flight No. 919, bound to arrive in Manila at 4:40 p.m. on the same day. 12
killings and enforced disappearances. The writ of Amparo is a tool that gives voice to preys of silent guns and prisoners behind
secret walls.
In the Petition, Lozada claims that, upon disembarking from the aircraft, several men held his arms and took his bag. Although he
allegedly insisted on meeting with his family, he later realized that it was wiser to just follow them, especially when he overheard
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26,
from their handheld radio: "[H]wag kayong dumaan diyan sir nandyan ang mga taga senado."13
2007 is affirmed.

Lozada asked if he could go to the comfort room, an opportunity he used to call up his brother, petitioner Arturo, and inform him
G.R. Nos. 184379-80 April 24, 2012
of his situation.14 The men thereafter led him through the departure area of the airport and into a car waiting for them. 15 They made
him sit alone at the back of the vehicle, while a man, whom he later discovered to be respondent Valeroso, took the passenger seat
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, Petitioners, and was always in contact with other individuals.16 Lozada observed that other cars tailed their vehicle.17
vs.
PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and
Sec. Atienza then phoned Lozada, assuring the latter that he was with people from the government, and that the former was going
SPO4 ROGER VALEROSO,* Respondents.
to confer with "ES and Ma’[a]m." Lozada surmised that these individuals referred to ES Ermita and former President Arroyo,
respectively.18 Sec. Atienza also purportedly instructed Lozada to pacify his wife, petitioner Violeta, who was making public
DECISION statements asking for her husband’s return.19

SERENO, J.:
58
The vehicle traversed the South Luzon Expressway and drove towards the direction of Laguna. 20 Along the way, the men asked During the initial hearing on 14 February 2008, Lozada and Violeta ratified the Petition in the Amparo case41 to comply with
Lozada to draft an antedated letter requesting police protection. 21 Section 2 of the Rule on the Writ of Amparo,42 which imposes an order to be followed by those who can sue for the writ.43 The CA
also dismissed the Habeas Corpus case in open court for being moot and academic, as Lozada was physically present and was not
confined or detained by any of the respondents.44 Considering that petitioners failed to question the dismissal of the Habeas Corpus
Lozada requested that he be brought home to Pasig, but the men were allegedly compelled to deny his request on account of
case, the said dismissal had lapsed into finality, leaving only the Amparo case open for disposition.
unidentified security risks.22 Eventually, however, the vehicle turned around and drove to Libis, Quezon City. The group stopped
at The Outback restaurant to meet with certain individuals, who turned out to be Atty. Antonio Bautista (Atty. Bautista) and
Colonel Paul Mascarinas (Col. Mascarinas) of the Police Special Protection Office (PSPO). At the restaurant, Lozada claimed that Thereafter, Lozada filed a Motion for Temporary Protection Order and Production of Documents,45 while Arturo filed a Motion
he was made to fill in the blanks of a prepared affidavit. 23 for Production of Documents.46 Additionally, Arturo also filed a Motion for the Issuance of Subpoena Ad Testificandum and
Presentation of Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, "Jaime" the Driver
and Other Respondents. Respondents opposed these motions.47 The CA denied the Motion for the Issuance of Subpoena on the
After the meeting, the men informed Lozada that they were going to billet him in a hotel for a night, but he suggested that they
ground that the alleged acts and statements attributed to Sec. Neri and Benjamin Abalos (Abalos) were irrelevant to the Amparo
take him to La Salle Green Hills instead. The men acquiesced.24
case, and that to require them to testify would only result in a fishing expedition. 48 The CA likewise denied Arturo’s subsequent
Motion for Reconsideration.49
Upon arriving in La Salle Green Hills, Lozada was met by Violeta and his sister, Carmen Lozada (Carmen). 25 He observed that the
perimeter was guarded by policemen, purportedly restraining his liberty and threatening not only his security, but also that of his
In its Resolution dated 5 March 2008, the CA dropped former President Arroyo as a respondent on the ground that at the time the
family and the De La Salle brothers.26
Petition in the Amparo case was filed, she was still the incumbent President enjoying immunity from suit. 50 Arturo filed a Motion
for Reconsideration,51 which the CA denied in its Resolution dated 25 March 2008. 52
On 6 February 2008, at around 10:00 a.m., Col. Mascarinas supposedly brought Lozada to the office of Atty. Bautista to finalize
and sign an affidavit.27
On 12 September 2008, the CA rendered its Decision denying petitioners the privilege of the Writ of Amparo and dismissing the
Petition.53 The CA found that petitioners were unable to prove through substantial evidence that respondents violated, or threatened
At about 1:00 p.m., Violeta filed before this Court a Petition for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus with violation, the right to life, liberty and security of Lozada.
case).28 Arturo likewise filed before this Court a Petition for a Writ of Amparo, docketed as G.R. No. 181356 (the Amparo case),
and prayed for the issuance of (a) the writ of amparo; (b) a Temporary Protection Order (TPO); and (c) Inspection and Production
Petitioners thus filed the instant Petition, praying for: (a) the reversal of the assailed CA Decision; (b) the issuance of the TPO;
Orders as regards documents related to the authority ordering custody over Lozada, as well as any other document that would
and (c) the accreditation of the Association of Major Religious Superiors of the Philippines and the De La Salle Brothers as the
show responsibility for his alleged abduction.29
sanctuaries of Lozada and his family. 54 In the alternative, petitioners pray that this Court remand the case to the CA for further
hearings and reverse the latter’s Orders: (a) denying the Motion to Issue a Subpoena Ad Testificandum and (b) dropping former
At around the same time that Arturo filed the Petition for a Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle Green President Arroyo as a respondent. Petitioners raise the following issues:
Hills.30 Lozada was then made to sign a typewritten, antedated letter requesting police protection.31Thereafter, former Presidential
Spokesperson Michael Defensor (Sec. Defensor) supposedly came and requested Lozada to refute reports that the latter was
(1) Whether the Court a [q]uo erred in ruling to dismiss the petition for a writ of amparo and deny Petitioners’ prayer
kidnapped and to deny knowledge of alleged anomalies in the NBN-ZTE deal. Sec. Defensor then purportedly gave Lozada
for a Temporary Protection Order, inter alia, because there is no substantial evidence to prove that the right to life,
₱50,000 for the latter’s expenses.32
liberty or security of Jun Lozada was violated or threatened with violation. This rule is not in accord with the rule on
the writ of amparo and Supreme Court jurisprudence on substantial evidence[.]
On 7 February 2008, Lozada decided to hold a press conference and contact the Senate Sergeant-at-Arms, who served the warrant
of arrest on him.33 Lozada claimed that after his press conference and testimony in the Senate, he and his family were since then
(2) Whether the Ponencia erred and gravely abused its discretion by prematurely ruling that the testimony of witnesses
harassed, stalked and threatened.34
which Petitioners sought to present and who are subject of the Motion for Issuance of Subpoena ad testificandum were
irrelevant to the Petition for a Writ of Amparo in a way not in accord with the Rules of Court and Supreme Court
On the same day, this Court issued a Resolution (a) consolidating the Habeas Corpus case and the Amparo case; (b) requiring decisions.
respondents in the Habeas Corpus case to comment on the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents in the
Amparo case to file their verified Return; (e) referring the consolidated Petitions to the CA; and (f) directing the CA to set the
(3) Whether the Court a quo erred in using and considering the affidavits of respondents in coming up with the
cases for hearing on 14 February 2008.35 Accordingly, the court a quo set both cases for hearing on 14 February 2008. 36
questioned decision when these were not offered as evidence and were not subjected to cross-examination. This ruling
is not in accord with the Rules of Court and jurisprudence.
On 12 February 2008, respondents filed before the CA a Manifestation and Motion, praying for the dismissal of the Habeas Corpus
case.37 They asserted that Lozada was never illegally deprived of his liberty and was, at that time, no longer in their custody. They
(4) Whether the Court a [q]uo erred in dropping as respondent Pres. Gloria Arroyo despite her failure to submit a
likewise averred that, beginning 8 February 2008, Lozada had already been under the supervision of the Senate and, from then on,
verified return and personally claim presidential immunity in a way not in accord with the Rule on the Writ of Amparo. 55
had been testifying before it.38

The Office of the Solicitor General (OSG) asserts that petitioners failed to adduce substantial evidence, as the allegations they
In their verified Return, respondents claimed that Sec. Atienza had arranged for the provision of a security team to be assigned to
propounded in support of their Petition were largely hearsay. 56 The OSG also maintains that it was proper for the CA to have
Lozada, who was then fearful for his safety.39 In effect, respondents asserted that Lozada had knowledge and control of the events
dropped former President Arroyo as respondent on account of her presidential immunity from suit.57
that took place on 5 February 2008, voluntarily entrusted himself to their company, and was never deprived of his liberty. Hence,
respondents prayed for the denial of the interim reliefs and the dismissal of the Petition. 40
Respondent Atutubo also alleges, among others, that: (a) Lozada voluntarily asked for security and protection; (b) Lozada willingly
submitted himself to the company of the police escorts; (c) Atutubo merely accompanied him to pass through the contingency

59
route customarily provided to VIP passengers, public figures, foreign dignitaries, and the like; and (d) Atutubo only performed his
job to ensure security and maintain order at the airport upon the arrival of Lozada. 58
In the face of these assertions by respondents, petitioners nevertheless insist that while they have sufficiently established that
Lozada was taken against his will and was put under restraint, respondents have failed to discharge their own burden to prove that
they exercised extraordinary diligence as public officials.59 Petitioners also maintain that it was erroneous for the CA to have denied
their motion for subpoena ad testificandum for being irrelevant, given that the relevancy of evidence must be examined after it is
offered, and not before.60 Finally, petitioners contend that the presidential immunity from suit cannot be invoked in amparo
actions.61
Issues
In ruling on whether the CA committed reversible error in issuing its assailed Decision, three issues must be discussed:
I. Whether the CA committed an error in dropping former President Arroyo as a respondent in the Amparo case.
II. Whether the CA committed an error in denying petitioners’ Motion for the Issuance of a Subpoena Ad
Testificandum.
III. Whether petitioners should be granted the privilege of the writ of amparo.
Discussion
The writ of amparo is an independent and summary remedy that provides rapid judicial relief to protect the people’s right to life,
liberty and security.62 Having been originally intended as a response to the alarming cases of extrajudicial killings and enforced
disappearances in the country, it serves both preventive and curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates
the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action. 63
As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats
thereof.64 Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and
security, it cannot be issued on amorphous and uncertain grounds,65 or in cases where the alleged threat has ceased and is no longer
imminent or continuing.66 Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial character of the
writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of
persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in
light of and in response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to
be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate
filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of
unsubstantiated allegations.67 (Emphasis supplied.)
Using this perspective as the working framework for evaluating the assailed CA decision and the evidence adduced by the parties,
this Court denies the Petition.
First issue: Presidential immunity from suit
It is settled in jurisprudence that the President enjoys immunity from suit during his or her tenure of office or actual
incumbency.68 Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.69
60
In the case at bar, the events that gave rise to the present action, as well as the filing of the original Petition and the issuance of the
CA Decision, occurred during the incumbency of former President Arroyo. In that respect, it was proper for the court a quo to
have dropped her as a respondent on account of her presidential immunity from suit.
It must be underscored, however, that since her tenure of office has already ended, former President Arroyo can no longer invoke
the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the
alleged violation or threatened violation of the right to life, liberty and security of Lozada.
Nonetheless, examining the merits of the case still results in the denial of the Petition on the issue of former President Arroyo’s
alleged responsibility or accountability. A thorough examination of the allegations postulated and the evidence adduced by
petitioners reveals their failure to sufficiently establish any unlawful act or omission on her part that violated, or threatened with
violation, the right to life, liberty and security of Lozada. Except for the bare claims that: (a) Sec. Atienza mentioned a certain
"Ma’[a]m,"70 whom Lozada speculated to have referred to her, and (b) Sec. Defensor told Lozada that "the President was ‘hurting’
from all the media frenzy,"71 there is nothing in the records that would sufficiently establish the link of former President Arroyo to
the events that transpired on 5-6 February 2010, as well as to the subsequent threats that Lozada and his family purportedly
received.
Second issue: Denial of the issuance of a subpoena ad testificandum
This Court, in Roco v. Contreras,72 ruled that for a subpoena to issue, it must first appear that the person or documents sought to
be presented are prima facie relevant to the issue subject of the controversy, to wit:
A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any
investigation conducted under the laws of the Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and subpoena duces tecum. The first is
used to compel a person to testify, while the second is used to compel the production of books, records, things or documents therein
specified. As characterized in H.C. Liebenow vs. The Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that it concludes with
an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in
the subpoena.
Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites
are present: (1) the books, documents or other things requested must appear prima facie relevant to the issue subject of the
controversy (test of relevancy); and (2) such books must be reasonably described by the parties to be readily identified (test of
definiteness).73 (Emphasis supplied.)
In the present case, the CA correctly denied petitioners’ Motion for the Issuance of Subpoena Ad Testificandum on the ground
that the testimonies of the witnesses sought to be presented during trial were prima facie irrelevant to the issues of the case. The
court a quo aptly ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri and Abalos are not relevant to the instant Amparo Petition
where the issue involved is whether or not Lozada’s right to life, liberty and security was threatened or continues to be threatened
with violation by the unlawful act/s of the respondents. Evidence, to be relevant, must have such a relation to the fact in issue as
to induce belief in its existence or nonexistence. Further, Neri, Abalos and a certain driver "Jaime" are not respondents in this
Amparo Petition and the vague allegations averred in the Motion with respect to them do not pass the test of relevancy. To Our
mind, petitioner appears to be embarking on a "fishing expedition". Petitioner should present the aggrieved party [Lozada], who
has been regularly attending the hearings, to prove the allegations in the Amparo Petition, instead of dragging the names of other
people into the picture. We have repeatedly reminded the parties, in the course of the proceedings, that the instant Amparo Petition
does not involve the investigation of the ZTE-[NBN] contract. Petitioner should focus on the fact in issue and not embroil this
Court into said ZTE-NBN contract, which is now being investigated by the Senate Blue Ribbon Committee and the Office of the
Ombudsman.74 (Emphasis supplied.)
All the references of petitioners to either Sec. Neri or Abalos were solely with respect to the ZTE-NBN deal, and not to the events
that transpired on 5-6 February 2008, or to the ensuing threats that petitioners purportedly received. Although the present action
is rooted from the involvement of Lozada in the said government transaction, the testimonies of Sec. Neri or Abalos are
nevertheless not prima facie relevant to the main issue of whether there was an unlawful act or omission on the part of respondents
that violated the right to life, liberty and security of Lozada. Thus, the CA did not commit any reversible error in denying the
Motion for the Issuance of Subpoena Ad Testificandum.
Third issue: Grant of the privilege of the writ of amparo
A. Alleged violation of or threat to the right to life, liberty and security of Lozada
Senate contingent, who would arrest and detain him at the Office of the Senate Sergeant-at-Arms, until such time that he would
appear and give his testimony, pursuant to the Order of the Senate on the NBN-ZTE Project. [Lozada] clearly knew this because
at that time, it was still his decision not to testify before the Senate. He agreed with that plan. 82 (Emphases supplied.)
The foregoing statements show that Lozada personally sought the help of Sec. Atienza to avoid the Senate personnel, and thus
knew that the men who met him at the airport were there to aid him in such objective. Surely, the actions of Lozada evinced
knowledge and voluntariness, uncharacteristic of someone who claims to have been forcibly abducted.
However, these men’s subsequent acts of directing Lozada to board the vehicle and driving him around, without disclosing the
exact purpose thereof, appear to be beyond what he had consented to and requested from Sec. Atienza. These men neither informed
him of where he was being transported nor provided him complete liberty to contact his family members to assure them of his
safety. These acts demonstrated that he lacked absolute control over the situation, as well as an effective capacity to challenge
their instructions.

Nevertheless, it must be emphasized that if Lozada had in fact been illegally restrained, so much so that his right to liberty and
Sections 17 and 18 of the Rule on the Writ of Amparo requires the parties to establish their claims by substantial evidence, 75 or
security had been violated, the acts that manifested this restraint had already ceased and has consequently rendered the grant of
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.76The use of this evidentiary
the privilege of the writ of amparo moot. Whether or not Lozada was deprived of his liberty from the point when he was led inside
threshold reveals the clear intent of the framers of the Rule on the Writ of Amparo to have the equivalent of an administrative
the vehicle waiting for him at the airport up to the time he was taken to La Salle Green Hills, petitioners’ assertions that Lozada
proceeding, albeit judicially conducted, in addressing amparo situations. 77
and his family continue to suffer various threats from respondents remain unproven. The CA correctly found as follows:

In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the petitioner in an amparo
The supposed announcement of General Razon over the radio that [Lozada] was in the custody of the PNP can neither be construed
action to prove the existence of a continuing threat.78 Thus, this Court held in its Resolution in Razon v. Tagitis:79
as a threat to [Lozada’s] life, liberty and security. Certainly, no person in his right mind would make that kind of media
announcement if his intent was indeed to threaten somebody’s life, liberty and security.
Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case.
The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity
xxx xxx xxx
and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance.
An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers’ right to security; the brothers
claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, He claims that he is threatened by the alleged presence of armed men riding in motorcycle passing outside the De La Salle premises
the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct where he and his family are staying and by alleged threats of armed men around him at places where he went to. Again, these
violation of their right to security of person.80 (Emphasis supplied.) alleged threats were not proven by any evidence at all, as having originated from any of the respondents.

In the present case, the totality of the evidence adduced by petitioners failed to meet the threshold of substantial evidence. Sifting [Lozada] also considers the installation of the surveillance camera at the De La Salle and at St. Scholastica as indirect threat to his
through all the evidence and allegations presented, the crux of the case boils down to assessing the veracity and credibility of the right to life, liberty and security. He claims that these are spy cameras. However, save for [Lozada’s] self-serving claim, he simply
parties’ diverging claims as to what actually transpired on 5-6 February 2008. In this regard, this Court is in agreement with the failed to prove that they were installed or ordered installed by the respondents for the purpose of threatening his right to life, liberty
factual findings of the CA to the extent that Lozada was not illegally deprived of his liberty from the point when he disembarked and security.
from the aircraft up to the time he was led to the departure area of the airport, 81 as he voluntarily submitted himself to the custody
of respondents:
[Lozada] further maintains that there is an alleged trend, i.e., wherever he goes, there is a bomb threat. There were bomb threats
in the places where he went to like in [the Polytechnic University of the Philippines], Dagupan, Cebu and Bohol. However,
[Lozada] was one of the first few passengers to get off the plane because he was instructed by Secretary Atienza, th[r]ough a phone [Lozada] himself testified that he did not try to ascertain where the bomb threats emanated. Plainly, there is no evidence on record
call on the night of 04 February 2008, while he was still in Hong Kong, to proceed directly to the Bureau of Immigration so that that the bomb threats were made by the respondents or done upon their instigation.
few people would notice him and he could be facilitated in going out of the airport without any hassle from the people of the
Senate Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get away from the Senate people. [Lozada] even went to the
Moreover, [Lozada] views the pronouncement of the Secretary of Justice that he was put on the watch list of the Bureau of
men’s room of the airport, after he was allegedly "grabbed", where he made a call to his brother Arturo, using his Globe phone,
Immigration as a threat to his life, liberty and security. This alleged threat is again unsupported by evidence, as in fact, [Lozada]
and he was not prevented from making said call, and was simply advised by the person who met him at the tube to (sic) "sir, bilisan
testified that he did not ascertain from the Bureau of Immigration whether his name was actually in the official watch list of the
mo na". When they proceeded out of the tube and while walking, [Lozada] heard from the radio track down, "wag kayo dyan, sir,
Bureau. At any rate, the Secretary of Justice is not one of the respondents in the amparo petition, and there is no showing in the
nandyan yong mga taga Senado", so they took a detour and went up to the departure area, did not go out of the normal arrival area,
record that it was the respondents who ordered the same for the purpose of threatening him.
and proceeded towards the elevator near the Duty Free Shop and then down towards the tarmac. Since [Lozada] was avoiding the
people from the Office of the Senate Sergeant-at-Arms, said detour appears to explain why they did not get out at the arrival area,
where [Lozada] could have passed through immigration so that his passport could be properly stamped. [Lozada] harps on the filing of alleged frivolous cases against him and his family as threat to his life, liberty and security. xxx
However, [Lozada] himself testified that he does not know whether the respondents or any of the respondents ordered the filing of
these cases against him. In any event, said purported cases are to be determined based on their own merits and are clearly beyond
This Court does not find any evidence on record that [Lozada] struggled or made an outcry for help when he was allegedly
the realm of the instant amparo petition filed against the respondents.83 (Emphasis supplied.)
"grabbed" or "abducted" at the airport. [Lozada] even testified that nobody held him, and they were not hostile to him nor shouted
at him. With noon day clarity, this Court finds that the reason why [Lozada] was fetched at the airport was to help him avoid the

61
Finally, petitioners insist that while they were able to sufficiently establish their case by the required evidentiary standard, the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its
respondents failed to discharge their burden to prove their defenses by substantial evidence and to show that respondents exercised own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent
extraordinary diligence as required by the Rule on the Writ of Amparo. 84 This Court has squarely passed upon this contention in documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should
Yano v. Sanchez,85 to wit: be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective. (Emphasis
supplied.)
The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the
automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter action can more adequately
substantial evidence. dispose of the allegations made by petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative remedy
is to facilitate the subsequent punishment of perpetrators.89 On the other hand, if there is no actual criminal case lodged before the
courts, then the denial of the Petition is without prejudice to the filing of the appropriate administrative, civil or criminal case, if
Thus, in amparo actions, petitioners must establish their claims by substantial evidence, and they cannot merely rely on the
applicable, against those individuals whom Lozada deems to have unduly restrained his liberty.
supposed failure of respondents to prove either their defenses or their exercise of extraordinary diligence. In this case, the totality
of the evidence presented by petitioners fails to meet the requisite evidentiary threshold, and the privilege of the writ of amparo
has already been rendered moot and academic by the cessation of the restraint to Lozada’s liberty. Finally, with respect to the interim reliefs sought by petitioners, this Court, in Yano v. Sanchez, 90 declined to grant the prayer for
the issuance of a TPO, as well as Inspection and Production Orders, upon a finding that the implicated public officials were not
accountable for the disappearance subject of that case. Analogously, it would be incongruous to grant herein petitioners’ prayer
B. Propriety of the privilege of the writ of amparo and its interim reliefs
for a TPO and Inspection and Production Orders and at the same time rule that there no longer exists any imminent or continuing
threat to Lozada’s right to life, liberty and security. Thus, there is no basis on which a prayer for the issuance of these interim
As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo, considering that the illegal restraint reliefs can be anchored.
alleged in this case had already ceased and there is no imminent or continuing restriction on his liberty. In Castillo v. Cruz,86 this
Court held as follows:
WHEREFORE, the instant petition is DENIED for being moot and academic. The Court of Appeals’ denial of the privilege of the
writ of amparo is hereby AFFIRMED.
Although respondents’ release from confinement does not necessarily hinder supplication for the writ of amparo, absent any
evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists
G.R. No. 184467 June 19, 2012
threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be
justified. (Emphasis supplied.)1âwphi1
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,
vs.
Further, it appears that Lozada had already filed before the Department of Justice (DOJ) a Complaint charging respondents with
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR V. PARDICO Respondent.
kidnapping and attempted murder, docketed as I.S. No. 2008-467.87 In this regard, this Court’s ruling in Rubrico v. Arroyo88 is
worth considering:
DECISION
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading
to the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial DEL CASTILLO, J.:
steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved
in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing of the OMB complaint came
For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that the persons subject thereof
before the effectivity of the Amparo Rule on October 24, 2007.
are missing are not enough. It must also be shown by the required quantum of proof that their disappearance was carried out by,
"or with the authorization, support or acquiescence of, [the government] or a political organization, followed by a refusal to
Second, Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, acknowledge [the same or] give information on the fate or whereabouts of [said missing] persons."3
been commenced. The succeeding Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition
for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the
This petition for review on certiorari4 filed in relation to Section 19 of A.M. No. 07-9-12-SC5 challenges the July 24, 2008
disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the
Decision6 of the Regional Trial Court (RTC), Branch 20, Malolos City which granted the Petition for Writ of Amparo 7 filed by
outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of
herein respondent against the petitioners.
the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 6 of the Rule, already issued ex parte the writ of
amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in
OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition Factual Antecedents
impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the
acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Corporation 8 (Asian Land) arrived at the house of
both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.
Lolita M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, Malolos City. The arrival
of the vehicle awakened Lolita’s son, Enrique Lapore (Bong), and Benhur Pardico (Ben), who were then both staying in her house.
Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to When Lolita went out to investigate, she saw two uniformed guards disembarking from the vehicle. One of them immediately
protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 asked Lolita where they could find her son Bong. Before Lolita could answer, the guard saw Bong and told him that he and Ben
and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. Towards this end, two things are at once should go with them to the security office of Asian Land because a complaint was lodged against them for theft of electric wires
indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal and lamps in the subdivision.9
complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on

62
Shortly thereafter, Bong, Lolita and Ben were in the office of the security department of Asian Land also located in Grand Royale house. However, the lamp Bong got was no longer working. Thus, he reinstalled it on the post from which he took it and no longer
Subdivision.10 The supervisor of the security guards, petitioner Edgardo Navia (Navia), also arrived thereat. pursued his plan. 22

As to what transpired next, the parties’ respective versions diverge. Later on, Lolita was instructed to sign an entry in the guard’s logbook where she undertook not to allow Ben to stay in her house
anymore.23 Thereafter, Navia again asked Lolita to sign the logbook. Upon Lolita’s inquiry as to why she had to sign again, Navia
explained that they needed proof that they released her son Bong unharmed but that Ben had to stay as the latter’s case will be
Version of the Petitioners
forwarded to the barangay. Since she has poor eyesight, Lolita obligingly signed the logbook without reading it and then left with
Bong.24 At that juncture, Ben grabbed Bong and pleaded not to be left alone. However, since they were afraid of Navia, Lolita and
Petitioners alleged that they invited Bong and Ben to their office because they received a report from a certain Mrs. Emphasis, a Bong left the security office at once leaving Ben behind.25
resident of Grand Royale Subdivision, that she saw Bong and Ben removing a lamp from a post in said subdivision.11 The reported
unauthorized taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both
Moments after Lolita and Bong reached their house, Buising arrived and asked Lolita to sign the logbook again. Lolita asked
work as security guards at the Asian Land security department. Following their department’s standard operating procedure, Dio
Buising why she had to sign again when she already twice signed the logbook at the headquarters. Buising assured her that what
and Buising entered the report in their logbook and proceeded to the house of Mrs. Emphasis. It was there where Dio and Buising
she was about to sign only pertains to Bong’s release. Since it was dark and she has poor eyesight, Lolita took Buising’s word and
were able to confirm who the suspects were. They thus repaired to the house of Lolita where Bong and Ben were staying to invite
signed the logbook without, again, reading what was written in it. 26
the two suspects to their office. Bong and Ben voluntarily went with them.

At the security office, Dio and Buising interviewed Bong and Ben. The suspects admitted that they took the lamp but clarified that
they were only transferring it to a post nearer to the house of Lolita.12 Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation. Since there was no complainant, Navia ordered the release of Bong
and Ben. Bong then signed a statement to the effect that the guards released him without inflicting any harm or injury to him.13 His
mother Lolita also signed the logbook below an entry which states that she will never again harbor or entertain Ben in her house.
Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion though, Navia allowed Ben to leave. Ben also affixed his signature on the
logbook to affirm the statements entered by the guards that he was released unharmed and without any injury. 14
Upon Navia’s instructions, Dio and Buising went back to the house of Lolita to make her sign the logbook as witness that they
indeed released Ben from their custody. Lolita asked Buising to read aloud that entry in the logbook where she was being asked
to sign, to which Buising obliged. Not contented, Lolita put on her reading glasses and read the entry in the logbook herself before
affixing her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos City Police Station requesting them to appear thereat on April
17, 2008 relative to the complaint of Virginia Pardico (Virginia) about her missing husband Ben. In compliance with the invitation,
all three petitioners appeared at the Malolos City Police Station. However, since Virginia was not present despite having received
the same invitation, the meeting was reset to April 22, 2008.16
The following morning, Virginia went to the Asian Land security office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before. She then looked for Ben, asked around, and went to the barangay.
Since she could not still find her husband, Virginia reported the matter to the police.
In the course of the investigation on Ben’s disappearance, it dawned upon Lolita that petitioners took advantage of her poor
eyesight and naivete. They made her sign the logbook as a witness that they already released Ben when in truth and in fact she
never witnessed his actual release. The last time she saw Ben was when she left him in petitioners’ custody at the security office.27
Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition for Writ of Amparo 28 before the RTC of
Malolos City. Finding the petition sufficient in form and substance, the amparo court issued an Order29dated June 26, 2008
directing, among others, the issuance of a writ of amparo and the production of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in] A.M. No. 07-[9]-12-SC, also known as "The
Rule On The Writ Of Amparo", let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of the Asian Land Security Agency to
produce before the Court the body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on the aforementioned date and time, and
DIRECTING the [petitioners] to personally appear thereat;

On April 22, 2008, Virginia attended the investigation. Petitioners informed her that they released Ben and that they have no
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising to file, within a non-extendible
information as to his present whereabouts.17 They assured Virginia though that they will cooperate and help in the investigation of
period of seventy-two (72) hours from service of the writ, a verified written return with supporting affidavits which
her missing husband.18
shall, among other things, contain the following:

Version of the Respondent

a) The lawful defenses to show that the [petitioners] did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party, through any act or omission;
According to respondent, Bong and Ben were not merely invited. They were unlawfully arrested, shoved into the Asian Land
vehicle and brought to the security office for investigation. Upon seeing Ben at the security office, Navia lividly grumbled "Ikaw
b) The steps or actions taken by the [petitioners] to determine the fate or whereabouts of the aggrieved party
na naman?"19 and slapped him while he was still seated. Ben begged for mercy, but his pleas were met with a flurry of punches
and the person or persons responsible for the threat, act or omission; and
coming from Navia hitting him on different parts of his body. 20 Navia then took hold of his gun, looked at Bong, and said, "Wala
kang nakita at wala kang narinig, papatayin ko na si Ben."21
c) All relevant information in the possession of the [petitioners] pertaining to the threat, act or omission
against the aggrieved party.
Bong admitted that he and Ben attempted to take the lamp. He explained that the area where their house is located is very dark and
his father had long been asking the administrator of Grand Royale Subdivision to install a lamp to illumine their area. But since
nothing happened, he took it upon himself to take a lamp from one of the posts in the subdivision and transfer it to a post near their

63
 (4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the [petitioners], or any persons acting for
and in their behalf, under pain of contempt, from threatening, harassing or inflicting any harm to [respondent], his
immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the [petitioners], at their address indicated in the petition, copies
of the writ as well as this order, together with copies of the petition and its annexes. 30
A Writ of Amparo31 was accordingly issued and served on the petitioners on June 27, 2008. 32 On June 30, 2008, petitioners filed
their Compliance33 praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony of Buising, while Virginia submitted the sworn
statements34 of Lolita and Enrique which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35 granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to immediately conduct a deep and thorough
investigation of the [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in connection with the circumstances
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as part of the investigation, the documents
forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the witnesses who testified in this case
protection as it may deem necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to investigate the circumstances concerning the
legality of the arrest of [Benhur] Pardico by the [petitioners] in this case, utilizing in the process, as part of said
investigation, the pertinent documents and admissions forming part of the record of this case, and take whatever
course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of Director Nestor Mantaring, and to the Provincial
Prosecutor of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied by the trial court in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED IN RULING THAT
RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT PETITIONERS HAVE
COMMITTED OR ARE COMMITTING ACTS IN VIOLATION OF HER HUSBAND’S RIGHT TO LIFE,
LIBERTY, OR SECURITY.
64
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE FACT OF THE
DISAPPEARANCE OF BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT THE ALLEGED DISAPPEARANCE
OF BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN PETITIONERS.39
Petitioners’ Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They contend that the writ of amparo is available only in cases
where the factual and legal bases of the violation or threatened violation of the aggrieved party’s right to life, liberty and security
are clear. Petitioners assert that in the case at bench, Virginia miserably failed to establish all these. First, the petition is wanting
on its face as it failed to state with some degree of specificity the alleged unlawful act or omission of the petitioners constituting a
violation of or a threat to Ben’s right to life, liberty and security. And second, it cannot be deduced from the evidence Virginia
adduced that Ben is missing; or that petitioners had a hand in his alleged disappearance. On the other hand, the entries in the
logbook which bear the signatures of Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at around
10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in holding them responsible for Ben’s
disappearance.
Our Ruling
Virginia’s Petition for Writ of Amparo is fatally defective and must perforce be dismissed, but not for the reasons adverted to by
the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an expeditious and effective relief "to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private
individual or entity." 40
Here, Ben’s right to life, liberty and security is firmly settled as the parties do not dispute his identity as the same person summoned
and questioned at petitioners’ security office on the night of March 31, 2008. Such uncontroverted fact ipso facto established Ben’s
inherent and constitutionally enshrined right to life, liberty and security. Article 6 41 of the International Covenant on Civil and
Political Rights42 recognizes every human being’s inherent right to life, while Article 943 thereof ordains that everyone has the right
to liberty and security. The right to life must be protected by law while the right to liberty and security cannot be impaired except
on grounds provided by and in accordance with law. This overarching command against deprivation of life, liberty and security
without due process of law is also embodied in our fundamental law. 44
The pivotal question now that confronts us is whether Ben’s disappearance as alleged in Virginia’s petition and proved during the
summary proceedings conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-
12-SC chose to allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis46 when this Court defined enforced
disappearances. The Court in that case applied the generally accepted principles of international law and adopted the International
Convention for the Protection of All Persons from Enforced Disappearance’s definition of enforced disappearances, as "the arrest,
detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."47
Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came about after Congress enacted Republic
Act (RA) No. 985148 on December 11, 2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection
of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion wrote in his Separate Opinion that with the enactment
of RA No. 9851, "the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the
rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’
is."50 Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or
involuntary disappearance of persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced disappearance
cases, courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
indispensable element of State participation is not present in this case. The petition does not contain any allegation of State
complicity, and none of the evidence presented tend to show that the government or any of its agents orchestrated Ben’s
disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in Virginia’s amparo petition
whether as responsible or accountable persons.51 Thus, in the absence of an allegation or proof that the government or its agents
had a hand in Ben’s disappearance or that they failed to exercise extraordinary diligence in investigating his case, the Court will
definitely not hold the government or its agents either as responsible or accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But
even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security guards at
Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity. They do not work
for the government and nothing has been presented that would link or connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance
must be attended by some governmental involvement. This hallmark of State participation differentiates an enforced disappearance
case from an ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos City, is REVERSED and SET ASIDE.
The Petition for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.
G.R. Nos. 146368-69 October 18, 2004

From the statutory definition of enforced disappearance, thus, we can derive the following elements that constitute it: MADELEINE MENDOZA-ONG, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;

RESOLUTION
(b) that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization;

QUISUMBING, J.:
(c) that it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparo petition; and,
In this Motion for Reconsideration,1 petitioner Madeleine Mendoza-Ong seeks a reversal of this Court’s October 23, 2003,
Resolution dismissing her petition for certiorari and upholding the Sandiganbayan’s denial of her motion to quash. She contends
(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period
that the Court erred in:
of time.

I
As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof
are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by,
or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge …holding that the information filed against [her] in Criminal Case No. 23848 has alleged the essential ingredients of
the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the the offense charged [and in]
protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by
substantial evidence the indispensable element of government participation.
II

In the present case, we do not doubt Bong’s testimony that Navia had a menacing attitude towards Ben and that he slapped and
…failing to resolve the fundamental issue of whether the excessive or inordinate delay in the conduct of the preliminary
inflicted fistic blows upon him. Given the circumstances and the pugnacious character of Navia at that time, his threatening
investigation and filing of the informations after three (3) years had deprived [her] of her Constitutional and statutory
statement, "Wala kang nakita at wala kang narinig, papatayin ko na si Ben," cannot be taken lightly. It unambiguously showed his
right to due process and speedy determinations and disposition of the cases against her warranting dismissal thereof. 2
predisposition at that time. In addition, there is nothing on record which would support petitioners’ assertion that they released
Ben on the night of March 31, 2008 unscathed from their wrath. Lolita sufficiently explained how she was prodded into affixing
her signatures in the logbook without reading the entries therein. And so far, the information petitioners volunteered are sketchy Concerning the first ground abovecited, the Court notes that the motion contains merely a reiteration or rehash of arguments
at best, like the alleged complaint of Mrs. Emphasis who was never identified or presented in court and whose complaint was already submitted to the Court and found to be without merit. Petitioner fails to raise any new and substantial arguments, and no
never reduced in writing.1âwphi1 cogent reason exists to warrant a reconsideration of the Court’s Resolution. It would be a useless ritual for the Court to reiterate
itself.3
But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish
that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This

65
As to the second ground, we find it raises arguments that have already been passed upon. Reconsideration on that ground may also
be denied summarily. Nevertheless, we shall take time to explain why her motion must be set aside for lack of merit, if only to
clear any lingering doubt on the matter.
Petitioner laments that although the complaint was filed with the Office of the Deputy Ombudsman for the Visayas as early as
December 13, 1994, the informations were filed with the Sandiganbayan only on August 1, 1997, and the amended informations,
on October 27, 1998. According to her, the delay of nearly three years to finish the preliminary investigation violated her
constitutional rights to due process and speedy disposition of cases. The established facts of this case, however, show no such
violation.
The right to speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended by
vexatious, capricious and oppressive delays.4 In the determination of whether said right has been violated, particular regard must
be taken of the facts and circumstances peculiar to each case. 5 The conduct of both the prosecution and the defendant, 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 are the factors to consider and balance.6 A mere mathematical reckoning of time involved would not be sufficient. 7
In this case, the Graft Investigation Officer released his resolution finding probable cause against petitioner on August 16, 1995,
less than six months from the time petitioner and her co-accused submitted their counter-affidavits. On October 30, 1995, only
two and a half months later, Ombudsman Aniano Desierto had reviewed the case and had approved the resolution. Contrary to
petitioner’s contention, the lapse of only ten months from the filing of the complaint on December 13, 1994, to the approval of the
resolution on October 30, 1995, is by no means oppressive. "Speedy disposition of cases" is consistent with reasonable delays. 8 The
Court takes judicial notice of the fact that the nature of the Office of the Ombudsman encourages individuals who clamor for
efficient government service to lodge freely their complaints against alleged wrongdoing of government personnel. 9 A steady
stream of cases reaching the Ombudsman inevitably results.10 Naturally, disposition of those cases would take some time.
Moreover, petitioner herself had contributed to the alleged delay when she asked for extension of time to file her counter-affidavit.
That the informations were filed only on August 1, 1997, also did not violate petitioner’s constitutional rights. The delay was not
without valid reasons. The Special Prosecutor in charge of preparing the informations felt a genuine need to specify in the
informations (1) the value of the five drums of fuel petitioner received as gift in violation of the anti-graft law and (2) the amount
of the subsistence allowance of heavy-equipment operators that the municipality of Laoang, Northern Samar, paid for when
petitioner used heavy equipment rented by the municipality to develop her private property. The recommendation to specify these
two amounts then had to undergo levels of review and was approved by Ombudsman Desierto only on January 29, 1996.
Unfortunately, the needed information was not in the records, so the Deputy Special Prosecutor sought it from the Office of the
Deputy Ombudsman for the Visayas. As that office also did not possess the needed information, it issued an Order on June 10,
1996, directing petitioner to supply the needed information.
When petitioner received a copy of the Order, however, she sought additional time to comply with the Order. She waited for two
months before filing on August 23, 1996, a verified statement supplying none of the information required of her. She claimed that
the five drums of fuel were merely donated to her and that she did not know their value. She also alleged that it was she and her
husband, and not the government, who spent for the subsistence allowance of the heavy-equipment operator in the development
of her private property. She did not object to the delay in the termination of the proceedings against her, nor did she seek at that
time to expedite its resolution.
Petitioner’s refusal to supply the information prompted the handling investigator at the Office of the Deputy Ombudsman for the
Visayas to recommend on August 28, 1996, that the price of the five drums of fuel be estimated instead. Notably, the Office of the
Special Prosecutor could have filed the informations then, but petitioner had filed with the said office a motion for reassessment
of evidence on June 25, 1996, and a supplemental motion on August 20, 1996. These motions, which incidentally also failed to
raise the issue of delay, effectively suspended the filing of the informations.
Subsequently, the case had to be reassigned to another Special Prosecutor because the original handling prosecutor was appointed
Resident Ombudsman for the Bureau of Internal Revenue. Petitioner’s motion for reassessment was resolved only on June 27,
1997. The resolution again went up for further review.
66
Considering the number of times that the case had to be reviewed, the levels of review that the case had to undergo, and petitioner’s
own motions for additional time, the period that lapsed -- roughly two years and five months (from the time petitioner and her co-
accused submitted their counter-affidavits on March 29, 1995, to the time the informations were filed on August 1, 1997) to
terminate the proceedings against petitioner -- could not be considered vexatious, capricious, and oppressive delay. They were
necessitated by exigency of the actions taken on the case. The period to terminate the proceedings, in our view, had not violated
petitioner’s constitutionally guaranteed rights to due process and to a speedy disposition of cases. 11
Neither could the delay be said to have been prejudicial to her considering that she herself is guilty of delay.12 The Court has held
that if the long delay in the termination of the preliminary investigation was not solely the prosecution’s fault, but was also due to
incidents attributable to the accused and his counsel, the right of the accused to speedy disposition of cases is not
violated.13 Petitioner cannot now seek the protection of the law to benefit from what she now considers the adverse effects of her
own conduct in this case.
Petitioner’s reliance on the doctrines in Tatad v. Sandiganbayan, 14 Duterte v. Sandiganbayan,15 and Angchangco, Jr. v.
Ombudsman16 is misplaced.
In Tatad v. Sandiganbayan, the cases against petitioner remained dormant for almost three years. In ruling that the long delay
violated not only Tatad’s constitutional right to due process but also his right to speedy disposition of the cases against him, the
Court considered three factors. First, political motivation played a vital role in activating and propelling the prosecutorial process.
Second, there was a blatant departure from established procedures prescribed by law for the conduct of a preliminary investigation.
And third, the long delay in resolving the preliminary investigation could not be justified on the basis of the records. 17
Worth noting, in Duterte v. Sandiganbayan, petitioners were denied the right to a preliminary investigation altogether. They were
not served copies of the complaint-affidavits and were not given the chance to file counter-affidavits. The Graft Investigator merely
required them to comment on a civil complaint against them and on a Special Audit Report of the Commission on Audit, both of
which were not equivalent to the complaint-affidavits required by the applicable administrative rules. In fact, the petitioners were
unaware and were never informed that a preliminary investigation was being conducted against them. The recommendations in
the COA Special Audit Report were already accepted even before the report came out, and the civil complaint had already long
been dismissed before the Graft Investigator required petitioner’s comment on it.
Additionally, in Duterte, although the petitioners had filed the manifestation in lieu of the required comment on February 18, 1992,
it was only on February 22, 1996, or four years later, that they received the resolution recommending the filing of informations
against them. Then, also, informations were filed against petitioners in that case even in the absence of sufficient ground to hold
them liable for the crime charged.
In Angchangco, Jr. v. Ombudsman, the delay lasted for six years despite the fact that Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr., even filed a motion to dismiss. Sadly, however, the Office of the Ombudsman failed
to act on said motion.18
Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the delays were manifestly oppressive, the facts of this case do not
evince vexatious, capricious and oppressive delay in the conduct of the preliminary investigation. There appears, therefore, no
persuasive much less compelling reason to grant in this case the same radical relief granted in those three cases that petitioner
cited.19
WHEREFORE, petitioner’s Motion for Reconsideration is hereby DENIED for lack of merit.
G.R. No. 108595 May 18, 1999
ELPIDIO C. CERVANTES, petitioner,
vs.
THE SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL PROSECUTOR, and PEDRO ALMEDRAS, respondents.

PARDO, J.:
The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction seeking to annul and
set aside the resolution of the Sandiganbayan. First Division,1 that denied petitioner's motion to quash the information against him
for violation of Section 3 (e). Republic Act 3019, and to restrain or enjoin the Sandiganbayan from proceeding with his arraignment
and trial. The motion is based on the ground that the filing of the information against petitioner over six (6) years after the initial
complaint with the Tanodbayan (predecessor of the Ombudsman) violated his right to speedy disposition of the case, and that the
acts charged in the information do not constitute an offense.
We grant the petition.
The facts are as follows.
On March 6, 1986, one Pedro Almendras filed with the Office of the Tanodbayan (predecessor of the Ombudsman) a sworn
complaint2 against Alejandro Tapang for falsification of complaint's "salaysay" alleging that Alejandro Tapang made complainant
sign a piece of paper in blank on which paper a "salaysay" was later inscribed stating that complaint had been paid his claim in the
amount of P17,594.00, which was not true. In the said complaint, Pedro Almendras mentioned that he sought the help of petitioner
Elpidio C. Cervantes who worked as analyst in the office of labor arbiter Teodorico L. Ruiz. 3
On October 2, 1986, Alejandro Tapang submitted to the Office of the Tanodbayan a counter-affidavit stating that the letter
complaint of Almendras was the subject of a labor case decided by Arbiter Teodorico L. Ruiz; that the letter "is full of lies and
improbabilities "and "that it is vague."4
On October 16, 1986, petitioner Elpidio C. Cervantes filed with the office of the Tanodbayan an affidavit stating that he had
nothing to do with the blank paper that Almendras signed, as admitted by the latter in a confrontation in the presence of National
Labor Relations Commission (NLRC) vice chairman Diego Atienza.5
On May 18, 1992, more than six (6) years after the filing of the initiatory complaint with the Tanodbayan, Special Prosecution
Officer II, Office of the Special Prosecutor Luz L. Quinones-Marcos filed with the Sandiganbayan, assigned to the First Division,
an Information charging petitioner Elpidio C. Cervantes, together with Teodorico L. Ruiz and Alejandro Tapang with violation of
Section 3 (e), Republic Act 3019, committed as follows:
That on or about June 16, 1984, or for sometime subsequent thereto, in Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused Teodorico L. Ruiz, a public officer, being
then a Labor Arbiter, National Labor Relations Commission, NCR, Department of Labor and Elpidio
Cervantes, also a public officer, being then a Labor Analyst, National Labor Relations Commission, NCR,
Department of Labor, in the exercise of their official and administrative functions, conspiring, confederating
and conniving with private respondent Alejandro Tapang, did then and there, wilfully, unlawfully and
criminally with evident bad faith and manifest partiality cause undue injury to one Pedro Almendras by then
and there inducing Pedro Almendras to sign a blank paper, on which a statement was later typed and
attributed as his (Almendras) statement in which statement allegedly acknowledged that the whole amount
awarded to him by the NLRC in a decision in NCR Case No. 10-731-81 had been paid by Alejandro Tapang
and therefore, he is no longer pursuing any claim against Tapang unwarranted benefits and advantage to the
damage and prejudice of Pedro Almedras.
CONTRARY TO LAW.6
67
On May 28, 1992, petitioner filed a motion for reconsideration with the Office of the Special Prosecutor reiterating that he never
met complainant Almendras on June 29, 1984, that complainant filed a case before the City Fiscal of Quezon City, claiming that
his counsel together, with Tapang conspired to deprive him of his monetary award and that the case was dismissed.
On October 2, 1992, petitioner filed with the Sandiganbayan, Manila, a "motion to defer arraignment due to pendency of
reinvestigation or motion to quash and motion to recall warrant of arrest" on the ground that (a) petitioner filed with the office of
the Special Prosecutor a motion for reinvestigation; (b) that the case against Cervantes "has prescribed" due to unreasonable delay
in the resolution of the preliminary investigation, and (c) that the acts charged in the information do not constitute an offense. 8
On October 2, 1992, the Ombudsman denied petitioner's motion for reconsideration,9 and simultaneously filed with the
Sandiganbayan an amended information. The amendment consisted of the insertion of the total amount involved. 10
By minute resolution dated December 24, 1992, the Sandiganbayan denied petitioner's motion, ruling that there was no
"unwarranted postponement nor any denial by the Tanodbayan or of the Ombudsman of any step taken by the accused to accelerate
the disposition on the matter." 11
Hence, this petition.
On February 22, 1993, the Court required respondents to comment on the petition (not to file a motion to dismiss) within ten (10)
days from notice, and issued a temporary restraining order enjoining respondent Sandiganbayan from continuing with the
arraignment and trial or from further proceeding with Criminal Case No. 17673. On December 14, 1993, respondents filed their
comment. On November 22, 1994, respondents filed a rejoinder.
We resolved to give due course to the petition and decide the case.
The issues raised are (a) whether the acts charged in the information filed against petitioner for violation of Section 3 (e), R. A.
3019 do not constitute a offense; and (b) whether the Sandiganbayan acted with grave abuse of discretion in denying his motion
to quash for violation of the right to speedy disposition of the case.
We shall first resolve the second issue. We find petitioner's contention meritorious. He was deprived of his right to a speedy
disposition of the case, a right guaranteed by the Constitution. 12 It took the Special Prosecutor (succeeding the Tanodbayan) six
(6) years from the filing of the initiatory complaint before he decided to file an information for the offense with the Sandiganbayan.
The letter complaint was filed with the Tanodbayan on March 6, 1986. The affidavit of the petitioner was filed therein on October
16, 1986. The Special Prosecutor resolved the case on May 18, 1992. In their comment to the petition at bar, 13 the Sandiganbayan
and the Special Prosecutor try to justify the inordinate delay in the resolution of the complaint by stating that "no political
motivation appears to have tainted the prosecution of the case" in apparent reference to the case of Tatad vs. Sandiganbayan,
(footnote: 159 SCRA 70, 81-82.) where the Court ruled that the "long delay (three years") in the termination of the preliminary
investigation by the Tanodbayan" was violate of the Constitutional right of "speedy disposition" of cases because "political
motivations played a vital role in activating and propelling the prosecutorial process in this case.
The Special Prosecutor also cited Alvizo vs. Sandiganbayan (footnote 220 SCRA 55, 64) alleging that, as in Alvizo, the petitioner
herein was "insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition
of the matter."
We cannot accept the Special Prosecutor's ratiocination. It is the duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the petitioner did not object to the delay or that the delay was with his
acquiescence provided that it was not due to causes directly attributable to him.
Consequently, we rule that the Sandiganbayan gravely abused its discretion in not quashing the information for violation of
petitioner's Constitutional right to the speedy disposition of the case in the level of the Special Prosecutor, Office of the
Ombudsman. 13
We deem it unnecessary to resolve the first in view of the foregoing ruling. the fact-finding of the case, which lasted for three (3) years, and the preliminary investigation, which lasted for six (6) years, were
due to mechanical routing and avoidable delay. The Sandiganbayan found that such delays were unnecessary and unacceptable. It
also echoed Coscolluela that it was not the duty of the respondent in a preliminary investigation to follow up on the prosecution
WHEREFORE, the Court hereby GRANTS the petition and ANNULS the minute resolution of the Sandiganbayan, dated
of his case.
December 24, 1992, in Criminal Case No. 17673. The Court directs the Sandiganbayan to dismiss the case, with costs de oficio.
Hence, this petition.
The temporary restraining order heretofore issued is made permanent.
Issue
G.R. No. 218040, April 17, 2017
WHETHER THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN DISMISSING THE CRIMINAL CASE AGAINST RESPONDENT.10
JUANITO VICTOR C. REMULLA, Petitioner, v. SANDIGANBAYAN (SECOND DIVISION) AND ERINEO S.
MALIKSI, Respondents. Remulla argues that the Sandiganbayan should not have dismissed the case as there was a finding of probable cause; that there
was no violation of Maliksi's right to a speedy disposition of his case because he did not promptly assert his right; that mere
mathematical reckoning of the time involved is not sufficient to invoke inordinate delay; that in Tilendo v. Ombudsman11 (Tilendo),
DECISION
there must be an active assertion of the right to a speedy disposition of cases before the Ombudsman; and that Coscolluela is
inapplicable because the petitioner therein was completely unaware of his pending case.
MENDOZA, J.:
In his Comment,12 Maliksi countered that the petition was defective because it was filed by Remulla, a private party. He
underscored that only the Office of the Solicitor General (OSG), or, in certain instances, the OSP, may bring or defend actions for
This is a petition for certiorari seeking to annul and set aside the February 2, 2015 1 and March 20, 20152Resolutions of the or on behalf of the Republic of the Philippines. Maliksi also pointed out that the delay of nine (9) years in the preliminary
Sandiganbayan Second Division in Criminal Case No. SB-14-CRM-0432, which dismissed the case filed by Juanito Victor C. investigation of his case was clearly an inordinate delay. He cited the cases of Tatad v. Tanodbayan13 and People v.
Remulla (Remulla) against respondent Erineo S. Maliksi (Maliksi) for violation of Section 3 (e) of Republic Act (R.A.) No. 3019 Sandiganbayan,14 where even delays of even shorter period of years were considered violations of the right to speedy disposition
or the Anti-Graft and Corrupt Practices Act. of cases. Finally, Maliksi argued that the petition was a violation of his constitutional right against double jeopardy because a
dismissal of criminal case due to the right to speedy disposition of a case is tantamount to an acquittal.
On August 12, 2005, Remulla filed a criminal complaint against Maliksi before the Office of the Ombudsman (Ombudsman) for
violation of Section 3 (e) of R.A. No. 3019. He alleged that Maliksi, as governor of Cavite, caused the purchase of certain medical In his Reply,15 Remulla averred that he had the legal standing to file this subject petition as a taxpayer or a citizen because public
supplies from Allied Medical Laboratories Corporation in November 2002 without conducting any public bidding, thereby giving funds were illegally disbursed. He contended that the length of delay was not the only factor that must be considered in determining
unwarranted benefit or preference to it. On December 15, 2005, Maliksi filed his counter-affidavit.3 inordinate delay. Remulla invoked the cases of Guerrero v. CA16 (Guerrero), Bernat v. Sandiganbayan17 (Bernat) and Tello v.
People18 (Tello), where the failure of the accused to assert his right to a speedy disposition of his case was deemed a waiver for
The Ombudsman Ruling such right. He pointed out that Maliksi knew that there was a pending case against him but he never asserted his right to a speedy
disposition of his case during the preliminary investigation. Finally, Remulla claimed that there was no violation of the right against
After almost nine (9) years, in a resolution, dated August 27, 2014, the Ombudsman found probable cause against Maliksi for double jeopardy as the dismissal of Maliksi's case was tainted with grave abuse of discretion.
violation of Section 3 (e) of R.A. No. 3019.4
In its Comment,19 the Ombudsman, through the OSP, argued that Court must provide a definitive ruling on the concept of
Maliksi filed his motion for reconsideration, arguing that there was no probable cause and that there was a violation of his right to inordinate delay because the current model was still in a state of perpetual flux. It opined that Coscolluela was inapplicable in the
a speedy disposition of his case.5 In its order, dated October 22, 2014, the Ombudsman denied the said motion for reconsideration.6 present case as Maliksi was aware of the pending case against him before the Ombudsman. The OSP also emphasized that the
Sandiganbayan merely dismissed the case against Maliksi by considering the sole factor of length of delay. It cited the case
In November 2014, the Ombudsman filed an information for violation of Section 3 (e) of R.A. No. 3019 against Maliksi before of Barker v. Wingo,20 where the defendant's assertion of, or failure to assert, his right to a speedy trial was one of the factors to be
the Sandiganbayan. Maliksi then filed his Motion to Dismiss,7 dated November 20, 2014, alleging that the finding of probable considered in an inquiry whether there was deprivation of such right. The OSP echoed the argument of Remulla that an accused
cause against him was null and void, and that his constitutional right to a speedy disposition of his case was violated. According who does not take any step whatsoever to accelerate the disposition of the case was deemed to have slept on his right and have
to him, the 9-year delay in the proceedings caused him undue prejudice. given acquiesces to the supervening delays.
The Sandiganbayan Ruling
The Court's Ruling
In its February 2, 2015 Resolution, the Sandiganbayan found that Maliksi's right to a speedy disposition of his case was violated.
Thus, it dismissed the case against him. It stated that the explanation provided by the Ombudsman, through the Office of the The petition is bereft of merit.
Special Prosecutor (OSP), was insufficient to justify its 9-year delay in the resolution of Maliksi's case. The Sandiganbayan noted
that the interval was caused by the delay in the routing or transmission of the records of the case, which was unacceptable. The petition was filed by a private party
Citing Coscolluela v. Sandiganbayan,8 (Coscolluela), it wrote that it was inconsequential to determine whether an accused had
followed up on his case because it was not his duty to do so. The Sandiganbayan opined that it was the Ombudsman's responsibility Procedural law mandates that all criminal actions, commenced by a complaint or an information, shall be prosecuted under the
to expedite the resolution of the case within a reasonable time. direction and control, of a public prosecutor. In appeals of criminal cases before the Court of Appeals (CA) and before this Court,
the OSG is the appellate counsel of the People, pursuant to Section 35 (l), Chapter 12, Title III, Book IV of the 1987 Administrative
On February 12, 2015, the OSP filed a Motion for Partial Reconsideration 9 arguing that the delay in the preliminary investigation Code.21 In certain instances, the OSP represented the People, when it involved criminal cases within the jurisdiction of the
was neither whimsical nor capricious, considering that Maliksi did not complain on the delay. Sandiganbayan.22

In its assailed resolution, dated March 20, 2015, the Sandiganbayan denied the motion for partial reconsideration. It reiterated that The present case challenges the dismissal of a criminal case due to the violation of the right to speedy disposition of cases. The
petition filed before this Court was initiated by Remulla in his capacity as a private complainant without the intervention of either
68
the OSG or the OSP. Although he claims that he has legal standing as a taxpayer, the present case is criminal in nature and the
People is the real party in interest.23 Remulla captioned his petition as "People of the Philippines v. Sandiganbayan (Second
Division) and Erineo S. Maliksi"24 but it is clear that he does not represent the People.
Only on rare occasions when the offended party may be allowed to pursue the criminal action on his own behalf such as when
there is a denial of due process,25 or where the dismissal of the case is capricious shall certiorari lie.26 As will be discussed later,
Remulla failed to qualify in any of these exceptional circumstances. Accordingly, he has no legal personality to assail the dismissal
of the criminal case against Maliksi on the ground of violation of the right to a speedy disposition of his case.
The right to a speedy disposition of cases is a relative concept
The right to a speedy disposition of a case, like the right to a speedy trial,27 is deemed violated only when the proceeding 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 justifiable motive, a long period of time is allowed to elapse without the party having his case tried. Equally
applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy
disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed. 28
More than a decade after the 1972 leading U.S. case of Barker v. Wingo29 was promulgated, this Court, in Martin v. Ver,30 began
adopting the "balancing test" to determine whether a defendant's right to a speedy trial and a speedy disposition of cases has been
violated. As this test necessarily compels the courts to approach such cases on an ad hoc basis, the conduct of both the prosecution
and defendant are weighed apropos the four-fold factors, to wit: (1) length of the delay; (2) reason for the delay; (3) defendant's
assertion or non-assertion of his right; and (4) prejudice to defendant resulting from the delay. None of these elements, however,
is either a necessary or sufficient condition; they are related and must be considered together with other relevant circumstances.
These factors have no talismanic qualities as courts must still engage in.a difficult and sensitive balancing process.31
In this case, Remulla argues that the cases of Tilendo, Guerrero, Bernat, and Tello dictate that it is mandatory for a respondent or
accused to actively assert his right to a speedy disposition of his case before it may be dismissed on the said ground. He insists
that Maliksi failed to follow up on his case during the preliminary investigation, hence, he cannot invoke his right to a speedy
disposition of his case. Further, he avers that the doctrine in Coscolluela, where the Court held that there was no need for the
respondent to follow up his case, is not controlling and it is only applicable when the respondent is completely unaware of the
preliminary investigation against him.
To resolve these issues, the first set of cases cited by Remulla must be examined to determine whether it is mandatory for a
respondent or accused to assert his right to a speedy disposition of his case. Also, the case of Coscolluela and its related cases must
be evaluated whether the respondent or accused has the obligation to follow up his case.
Tilendo, Guerrero, Bernat, and Tello cases
In Tilendo, the petitioner therein invoked his right to a speedy disposition of his case because the preliminary investigation by the
NBI lasted for three (3) years before it filed a complaint before the Ombudsman. In denying his petition, the Court held that there
was no unreasonable delay to speak of because the preliminary investigation stage only began after the NBI filed its complaint
against Tilendo. Even assuming there was delay in the termination of the preliminary investigation, Tilendo did not do anything
to accelerate the disposition of his case.
In Guerrero, the last pleading before the Court of First Instance was filed on December 21, 1979. The case was later re-assigned
to two other judges, and on March 14, 1990, the last judge found out that the transcript of stenographic notes (TSN) was incomplete
and ordered the parties to have the same completed. The petitioner therein filed a motion to dismiss on the ground that his right to
a speedy trial had been violated. The Court ruled that there was no such violation because it was only after the new judge reset the
retaking of the testimonies that the petitioner asserted his right. It was also held that a judge could hardly be faulted for the delay
because he could not have rendered the decision without the TSN. The Court observed that the conduct of the case could have a
different dimension had the petitioner made some overt act to assert his right.
Later, in Bernat, the criminal case against the petitioner therein was submitted for resolution before the Sandiganbayan on August
23, 1994. It was reassigned to Justice Ma. Cristina G. Cortez-Estrada upon her assumption of office on November 3, 1998; and
sometime in 2002, she found out that some of the TSN were missing. Thus, the parties were ordered to attend a conference to
discuss the matter. Instead of attending the conference, the petitioner therein filed a motion asserting his right to a speedy trial. In
dismissing his argument, the Court cited the case of Guerrero where the TSN were also lost and the judge had to retake the
69
testimonies. It noted that the petitioner failed to assert his rights. The Court also reiterated the ruling in Guerrero that the case
could have taken a different dimension had the petitioner actively asserted his right to a speedy trial.
Similarly, Tello echoed the doctrine in Bernat because the petitioner therein did not take any step to accelerate the disposition of
his case. He only invoked his right to speedy trial after the Sandiganbayan promulgated its decision convicting him for malversation
of public funds.
Coscolluela and its related cases
In Coscolluela, the petitioners therein were investigated for violation of Section 3(e) of R.A. No. 3019. In a resolution, dated
March 27, 2003, the assigned graft investigator found probable cause against the petitioners. The Ombudsman, however, only
approved the said resolution on May 21, 2009 and filed the information on June 19, 2009. The petitioners sought to dismiss the
case as the delay of six (6) years violated their right to a speedy disposition of their case. In upholding the position of the petitioners,
the Court ruled that there was unjustified delay in the preliminary investigation of the case. The Ombudsman could not give a
sufficient justification why it took six (6) years before it approved the resolution of the graft investigator. The Court also held that
it was not the petitioners' duty to follow up on the prosecution of their case. The petitioners therein were not informed of the
ongoing preliminary investigation against them.
Coscolluela relied on the case of Duterte v. Sandiganbayan32 (Duterte) to justify that there was no requirement to follow up a case.
In the said case, the petitioners were required to file a comment, instead of a counter-affidavit. The preliminary investigation was
delayed for four (4) years. They could not have urged the speedy resolution of their case because they were completely unaware
that the investigation was still ongoing. The Court also noted therein that the Ombudsman failed to present any plausible, special
or even novel reason which could justify the 4-year delay in terminating its investigation and the incident did not involve
complicated factual and legal issues.
Earlier, in Cervantes v. Sandiganbayan33 (Cervantes), a complaint for violation of Section 3(e) of R.A. No. 3019 was filed before
the Tanodbayan. On October 16, 1986, the petitioner therein filed an affidavit to answer the allegations against him. On May 18,
1992, or after almost six (6) years, an information was filed by the OSP with the Sandiganbayan. The petitioner asserted his right
to a speedy disposition of his case. The Court upheld his right because the OSP's explanation that no political motivation appeared
to have tainted the prosecution of the case was insufficient reason to excuse the inordinate delay. It was also ruled therein that "[i]t
is the duty of the prosecutor to speedily resolve the complaint, as mandated by the Constitution, regardless of whether the
petitioner did not object to the delay or that the delay was with his acquiescence provided that it was not due to causes directly
attributable to him."34
More recently, in People v. Sandiganbayan35 (People), a complaint was filed against the private respondents therein on December
28, 1994 before the Ombudsman. The last counter-affidavit was filed by the private respondents on March 11, 1996. On July 10,
1996, the special prosecution officer issued a memorandum recommending the filing of violation of Section 3 (e) of R.A. 3019
and was approved by the Deputy Ombudsman. Instead of filing the information, however, the case was subjected to several
"thorough review and reevaluation." It was only on October 6, 2009 that the criminal informations were filed before the
Sandiganbayan. Eventually, the private respondents implored their right to speedy disposition of their case.
It was held therein that there was inordinate delay of twelve (12) years from the time that the last counter-affidavit was filed until
the informations were lodged before the court. The explanation of the OSP that the case was subjected to a painstaking review and
that the Ombudsman had to transfer to its new building Were not given credence by the Court. It emphasized that the Ombudsman
simply failed to timely exercise its discretion as to whether or not to file criminal cases against the private respondents. The Court
did not sustain the OSP's argument that the respondents must be blamed for not taking any step whatsoever to accelerate the
disposition of the matter. Citing Cervantes, the Court reiterated that it was the duty of the prosecutor to expedite the prosecution
of the case regardless of the fact that the accused did not object to the delay.
Finally, in Inocentes v. People36 (Inocentes), a complaint for violation of Section 3 (e) was filed before the Ombudsman against
the petitioner therein. Following the denial of his motion for reconsideration on November 14, 2005, the prosecution filed the
informations with the Regional Trial Court (RTC) Tarlac City. On March 14, 2006, however, the Ombudsman ordered the
withdrawal of the informations. From this point, it took almost six (6) years, or only on May 2, 2012, before the informations were
filed with the Sandiganbayan. The Court opined that there was inordinate delay in the disposition of the petitioner's case because
it took six (6) years before his case and the records thereof was transferred from the RTC to the Sandiganbayan. The argument of
the OSP that the petitioner had no right to complain about the delay because he failed to seasonably invoke his right was not upheld
by the Court. It reiterated the doctrine of Coscolluela that it was not the petitioners' duty to follow up on the prosecution of their
case. to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to
intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy
Harmonizing the two sets of cases case load of the prosecution or a missing witness should be weighted less heavily against the State. Corollarily, Section 4, Rule
119 of the Revised Rules of Criminal Procedure enumerates the factors for granting a continuance. 39 [Emphases supplied]
The first set of cases shows that the criminal cases were not dismissed because of the non-assertion of the accused of their right to
Remulla argues that the assertion or non-assertion of the right to a speedy disposition of cases determines whether the court must
a speedy disposition of cases or speedy trial. Other factors in the balancing test were also considered by the Court, particularly,
dismiss the case for inordinate delay or continue the proceedings. Such argument, however, fails to persuade. It must be emphasized
the reason for the delay in the proceedings and the prejudice caused by the delay.
that the balancing test is a relative and flexible concept. The factors therein must be weighed according to the different facts and
circumstances of each case. The courts' are given wide judicial discretion in analyzing the context of the case, bearing in mind the
In Guerrero and Bernat, it was held that the delay was acceptable because there was a necessity to retake the testimonies of the
prejudice caused by the delay both to the accused and the State.
witnesses due to the lost TSN. The courts could not have adjudicated the case without the TSN. On the other hand, in Tilendo, the
Court accepted the explanation of the OSP that there was no inordinate delay because the NBFs inquiry was not part of the
In addition, there is no constitutional or legal provision which states that it is mandatory for the accused to follow up his case
preliminary investigation. Hence, as the length of delay in these cases were properly justified by the prosecution and the accused
before his right to its speedy disposition can be recognized. To rule otherwise would promote judicial, legislation where the Court
therein failed to take steps to accelerate their cases, the Court found that the there was no prejudice caused, which would warrant
would provide a compulsory requisite .not specified by the constitutional provision. It simply cannot be done, thus, the ad
the assertion of their right to a speedy disposition of cases.
hoc characteristic of the balancing test must be upheld.
In the second set of cases, the lengthy delay in the proceeding against the accused therein was not satisfactorily explained.
Likewise, contrary to the argument of the OSP, the U.S. case of Barker v. Wingo,40 from which the balancing test originated,
In Cervantes, the prosecution provided a lackluster excuse that there was no inordinate delay because the case was not politically
recognizes that a respondent in a criminal case has no compulsory obligation to follow up on his case. It was held therein that "[a]
motivated, in People, the filing of the case in court was drastically delayed because it was subjected to unnecessary reviews, and
defendant has ho duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with
the Ombudsman basically failed to decide whether to file the case or not. In Inocentes, there was an unwarranted delay in the filing
due process."41
of the case due to the lethargic transfer of the records from the RTC to the Sandiganbayan. Finally, in Coscolluela, the Ombudsman
could not give an explanation why the preliminary investigation was delayed for six years.
Finally, Remulla argues that the doctrine in Coscolluela - that the accused has no duty to follow up on the prosecution of their case
- only applies to cases where the accused is unaware of the preliminary investigation. A review of related and subsequent cases,
Essentially, the Court found in those cases that the State miserably failed to give an acceptable reason for the extensive delay. Due
however, validates the said doctrine that it is applicable even if the accused was fully informed and had participated in the
to the manifest prejudice caused to the accused therein, the Court no longer gave weighty consideration to their lack of objection
investigation. In Cervantes, the petitioner filed his affidavit before the Tanodbayan to answer the allegations against him.
during the period of delay. It was emphasized in those cases that it was the duty of the prosecutor to expedite the prosecution of
In People, the respondents therein were able to file their counter-affidavit with the Ombudsman. In Inocentes, the petitioner filed
the case regardless if the accused failed to object to the delay.
a motion for reconsideration before the Ombudsman. In all these cases, the accused were completely informed of the preliminary
investigation against them and they were able to participate in the proceedings before the delays were incurred. In spite of this, the
Based on the foregoing, there is no conflict between the first and the second set of cases. In the first set, the Court did not solely
Court applied the doctrine in Coscolluela because it was the Ombudsman's responsibility to expedite the proceedings within the
rely on the failure of the accused to assert his right; rather, the proper explanation on the delay and the lack of prejudice to the
bounds of reasonable timeliness in view of its mandate to promptly act on all complaints lodged before it.
accused were also considered therein. In the same manner, the Court in the second set of cases took into account several factors in
sustaining the right of the accused to a speedy disposition of cases, such as the length of delay, the failure of the prosecution to
In fine, it has been settled that the factors in the balancing test must be given different consideration and weight based on the
justify the period of delay, and the prejudice caused to the accused. The utter failure of the prosecution to explain the delay of the
factual circumstances of each case. Applying such principle in this case, the Court can now determine whether or not the
proceedings outweighed the lack of follow ups from the accused.
Ombudsman committed inordinate delay and violated Maliksi's right to a speedy disposition of his case.
Accordingly, both sets of cases only show that "[a] balancing test of applying societal interests and the rights of the accused
The Ombudsman failed to justify the delay in the proceedings
necessarily compels the court to approach speedy trial cases on an ad hoc basis."37To reiterate, none of the factors in the balancing
test is either a necessary or sufficient condition; they are related and must be considered together with other relevant
As indicated in the resolution, dated February 2, 2015, of the Sandiganbayan, the OSP gave the following explanation regarding
circumstances. Corpus v. Sandiganbayan38 thoroughly explained how the factors of the balancing test should be weighed,
the delay in the proceedings against Maliksi as follows:chanRoblesvirtualLawlibrary
particularly the prejudiced caused by the delay, to wit:chanRoblesvirtualLawlibrary
In justifying the length of time that it took the OMB to resolve the case, the prosecution meticulously explains that three different
xxx Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect,
cases were filed against the accused, two of which were from the complaint of Juan (sic) Victor C. Remulla for Violation of the
namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit
Anti-Graft Law and for Grave Misconduct, which was received by the Office of the Deputy Ombudsman for Luzon on August 7,
the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant
2005 (Remulla complaints). The third case was through the Feedback Report of PCSO Fund Allocation Department Manager
adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are
Teresita Brazil regarding the "Approved Financial Assistance of P10M to province of Cavite c/o Gov. Ayong Maliksi," which was
unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged
transmitted to the Ombudsman Central Office in 2005 (PCSO complaint). This was allegedly assigned for fact-finding
by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be
investigation in July 3, 2006under CPL-C-05-0188. Upon completion of the investigation, the complete record of the third case
drained, his association is curtailed, and he is subjected to public obloquy.
was said to have been forwarded to the Office of the Deputy Ombudsman for Luzon on September 26, 2008 for consolidation
with the two cases initiated by complainant Remulla.
Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage
of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require
Since the complete records of the Remulla cases, including the proposed Resolution and Decision, had already been submitted to
impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall
the Ombudsman Proper for approval on January 9, 2007, through the Central Record Division, the Deputy Ombudsman for Luzon
deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the
sent a Memorandum dated October 24, 2008 to the Ombudsman requesting that the third PCSO case be incorporated with the two
government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious
Remulla cases already resolved. This Memorandum Request was allegedly received by the Ombudsman Proper on June 4,
prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably
2009 and approved by then Ombudsman Merceditas N. Gutierrez. On April 6, 2010, the Chief Administrative Officer of the Office
attributable to the ordinary processes of justice.
of the Deputy Ombudsman for Luzon forwarded the complete record of the third PCSO case to the Chief of the Central Records
Division for incorporation with the two Remulla cases.
Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be
assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order
Continuing to the recital of events, the prosecution states that the cases against the accused were resolved by the Office of the
70
Deputy Ombudsman for Luzon as early as 2007 and were forwarded in the same year to the Ombudsman Proper for final approval.
Unfortunately, final action on the Resolution was allegedly overtaken by disruptive incidents and political events like the 2010 Based on the foregoing, the explanation provided by the OSP falls short of the reasonable justification to authorize delay in the
hostage-taking at the Quirino Grandstand and the impeachment of Ombudsman Gutierrez that led to her resignation in April proceedings. It was downright unnecessary to prolong the proceedings for a period of nine (9) years. To summarize, the initial
2011.42[Emphases supplied] delay began when the Ombudsman did not act with dispatch on the approval or disapproval of the proposed resolution and decision
in the Remulla. Due to its delay, the Deputy Ombudsman for Luzon was able to send a memorandum for consolidation with the
The length of delay in the proceedings of Maliksi's case must first be determined. In People v. Sandiganbayan,43 it was held that
PCSO case. The mere routing or transfer of the memorandum to the Ombudsman incurred eight (8) months of delay. Then, when
inordinate delay should be computed from the time of the fact-finding investigation until the completion of the preliminary
the memorandum was approved, it took ten (10) months before the records could be transferred from the Deputy Ombudsman for
investigation by the Ombudsman. The Court expounded that "[t]he guarantee of speedy disposition under Section 16 of Article III
Luzon to the Ombudsman. Finally, for a period of four (4) years, the consolidated cases sat at the Ombudsman. As the OSP did
of the Constitution applies to all cases pending before all judicial, quasi-judicial or administrative bodies. The guarantee would be
not submit an explanation as to the status of the case in that 4-year period, the Court can only conduct guesswork on the cause of
defeated or rendered inutile if the hair-splitting distinction by the State is accepted. Whether or not the fact-finding investigation
its delay.
was separate from the preliminary investigation conducted by the Office of the Ombudsman should not matter for purposes of
determining if the respondents' right to the speedy disposition of their cases had been violated." 44
Had the Ombudsman immediately approved or disapproved the proposed resolution and decision submitted to its office on January
9, 2007, then the case would have been promptly acted upon. If filed before the Sandiganbayan, the prosecution and the defense
Applying the foregoing rule, the delay in Maliksi's case started from the fact-finding investigation of the Ombudsman when he
could have timely presented their case. Instead, the Ombudsman chose inaction which led to a chain of delays lasting until July 8,
filed his counter-affidavit in Remulla cases on December 15, 2005 until the completion of the PCSO case on October 24, 2008, or
2014. After the lapse of nine (9) years of being kept in the dark, Maliksi could not have had the opportunity to timely present, his
a span of three (3) years. At that point, the preliminary investigation began, until it was terminated on August 27, 2014 and the
case in court due to the extensive delay in the preliminary investigation. Certainly, this protracted period of uncertainty over his
information was filed before the court.in November 2014, or a period of six (6) years. Thus, the Sandiganbayan observed that the
criminal case caused him prejudice, living under a cloud of anxiety, suspicion and even, hostility.
delay incurred in the proceedings lasted for a total period of nine (9) years. Even if the Court excludes the fact-finding stage of
three (3) years, there was still six (6) years of inordinate delay.
Further, in light of the circumstances of this case, the Court does not give great weight to Maliksi's lack of objection over the delay
because the OSP miserably failed to defend the Ombudsman's inaction. The prosecution could not give an acceptable reason to
As to the reason for the delay, the Court is of the view that the explanation provided by the OSP fails to justify the delay of six (6)
justify the 9-year interval before the case was filed in court. The proceedings were marred by the delay in the mechanical transfer
years in the resolution of the case against Maliksi because, first, there was a delay in the approval of the Remulla complaints by
of documents and records. No steps were taken by the Ombudsman to ensure that the preliminary investigation would be resolved
the Ombudsman. These complaints were filed in 2005 and Maliksi filed his counter-affidavit in the same year, on December 15,
in a timely manner. Clearly, the failure of the prosecution to justify the 9-year interval before the case was filed in court far
2005. According to the OSP, the proposed resolution and decision for the Remulla cases were submitted to the Ombudsman as
outweighs Maliksi's own inaction over the delay. As articulated in Coscolluela, Duterte, Cervantes, People, and Inocentes, the
early as January 9, 2007 for approval. The resolution and decision, however, remained unacted by the Ombudsman so much so
Court reiterates that it is the duty of the prosecutor to expedite the prosecution of the case regardless of whether or not the accused
that it was only after one (1) year and nine (9) months that the Deputy Ombudsman for Luzon was able to send a memorandum,
objects to the delay.
dated October 24, 2008, for their consolidation with the PCSO case. No explanation for the Ombudsman's inaction on the Remulla
cases was advanced by the OSP.
Likewise, Remulla's argument that the Sandiganbayan only took into account the length of delay in the proceedings deserves scant
consideration. Aside from the length of delay, the anti-graft court thoroughly discussed the Ombudsman's failure to give a suitable
Second, while the memorandum for consolidation of the Remulla and PCSO cases was dated October 24, 2008, it was only received
reason for the delay and the prejudice it had caused to Maliksi. The latter's lack of follow up with his case was not given much
by the Ombudsman on June 4, 2009. Evidently, the mere routing or transfer of the memorandum from the Deputy Ombudsman
weight because of the prosecution's manifest failure to justify the protracted lull in the proceedings. The Sandiganbayan, after
for Luzon to the Ombudsman took almost eight (8) months. Then Ombudsman Gutierrez approved the memorandum for
properly taking into consideration all the relevant factors in the balancing test and gave different weight on each factor based on
consolidation on an unspecified date,
the particular circumstances of this case, came to a conclusion that the Ombudsman committed inordinate delay. The case
underwent the intricate and difficult balancing test before Maliksi's right to a speedy disposition of his case was sustained. Thus,
Third, notwithstanding the approval of' the consolidation by the Ombudsman, it was only on April 6, 2010 when the Chief
the Court rules that the Sandiganbayan did not commit a grave abuse of discretion in dismissing the criminal case against Maliksi.
Administrative Officer of the Deputy Ombudsman for Luzon forwarded the complete record of the third PCSO case to the Chief
of the Central Records Division. As the approval of the memorandum on consolidation was undated, the Sandiganbayan assumed
To conclude, the Court finds it proper to reiterate the underlying principle of the constitutional right to a speedy disposition of
that the cause of delay was either the Ombudsman's belated approval or the Chief Administrative Officer of the Deputy
cases in the landmark case of Tatad v. Sandiganbayan:46
Ombudsman's delay in the transmittal of the case records. In either case, a delay of ten (10) months for the implementation of a
xxx Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial
memorandum for consolidation is unacceptable.
compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but
Noticeably, the transfer of these memoranda and records are ministerial in nature and does not require the exercise of discretion.
under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Right (both in the 1973
Thus, the Court is baffled on how these routine acts could take so long to be accomplished, As properly observed by the
and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. xxx
Sandiganbayan, routine matters could have been exercised at a faster pace in order to avoid unnecessary delay that expectedly
bears heavily on litigants.45
It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the
complete absence of a preliminary investigation does not warrant dismissal of the information. True — but the absence of a
Fourth, from the time that the consolidation of the Remulla and PCSO cases were approved on April 6, 2010, it took four (4) years,
preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a
or until July 8, 2014, before the joint resolution finding probable cause against Maliksi was issued by the Ombudsman. There is a
preliminary investigation cannot be corrected for now, until man has not yet invented a device for setting back time.47
void of account as to what exactly happened to the case during this 4-year period. Even more baffling was that although the cases
were consolidated, the information filed in November 2014 only involved the Remulla case. WHEREFORE, the petition is DENIED. The February 2, 2015 and March 20, 2015 Resolutions of the Sandiganbayan Second
Division in SB-14-CRM-0432 are AFFIRMED in toto.
Lastly, the OSP sought the understanding of the Sandiganbayan and explained that the resolution of the consolidated cases was
overtaken by disruptive events such as the 2010 hostage-taking at the Quirino Grandstand and the impeachment complaint against
the Ombudsman Gutierrez. These excuses, however, could hardly be considered as enough reason to warrant the delay in the G.R. No. 85215 July 7, 1989
proceedings. Obviously, these events have no direct relation to the Remulla and PCSO cases to affect their speedy resolution. The
functions of the Ombudsman under the Constitution are not suspended by the occurrence of unrelated events to its mandate,
whether political or not. Moreover, to sustain the argument of the OSP would set a perilous precedent as the delayed cases pending THE PEOPLE OF THE PHILIPPINES, petitioner,
before the Ombudsman from 2010 to 2014 can simply be overlooked by citing these occasions. vs.
71
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First
Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of
an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article
III of the Constitution, with the right of any person "under investigation for the commission of an
offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same
provision. The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL),
assigned at its Baguio City station. It having allegedly come to light that he was involved in
irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to
be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance
with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it
with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained.2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten
notes 3 reading as follows: At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
2-8-86 Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding
of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in
TO WHOM IT MAY CONCERN: writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the
tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO although he had planned on paying back the money, he had been prevented from doing so, "perhaps
SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to
AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired
IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. the next investigation to be at the same place, "Baguio CTO," and that he should be represented
therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as
he in fact afterwards
( did). 4 How the investigation turned out is not dealt with the parties at all; but
it would seems that no compromise agreement was reached much less consummated.
)
About two (2) F months later, an information was filed against Felipe Ramos charging him with the
crime of estafa
e allegedly committed in Baguio City during the period from March 12, 1986 to
January 29, 1987.
l In that place and during that time, according to the indictment, 5 he (Ramos) —
i
p
72
 .. with unfaithfulness and/or abuse of confidence, did then and there willfully ...
defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner,
to wit: said accused ... having been entrusted with and received in trust fare tickets
of passengers for one-way trip and round-trip in the total amount of P76,700.65,
with the express obligation to remit all the proceeds of the sale, account for it
and/or to return those unsold, ... once in possession thereof and instead of
complying with his obligation, with intent to defraud, did then and there ...
misappropriate, misapply and convert the value of the tickets in the sum of
P76,700.65 and in spite of repeated demands, ... failed and refused to make good
his obligation, to the damage and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated
June 21, 1988,6which included "the (above mentioned) statement of accused Felipe J. Ramos taken
on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as
well as his "handwritten admission x x given on February 8, 1986," also above referred to, which
had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence."7 Particularly as
regards the peoples' Exhibit A, the objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a lawyer." Exhibit K was objected
to "for the same reasons interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence,
it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL
Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does
not appear that the accused was reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his statement, it was with the assistance
actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made
by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the
exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he
made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated
September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings
in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA
467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to
the effect that "in custodial investigations the right to counsel may be waived but the waiver shall
73
not be valid unless made with the assistance of counsel," and the explicit precept in the present
Constitution that the rights in custodial investigation "cannot be waived except in writing and in the
presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio
Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to
him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact
that Ramos was not detained at the time, or the investigation was administrative in character could
not operate to except the case "from the ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for
certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the
People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson
and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY
RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance
of any order, decision or judgment in the aforesaid case or on any matter in relation to the same
case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region."
The Court also subsequently required the Solicitor General to comment on the petition. The
comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The
Solicitor General has made common cause with the petitioner and prays "that the petition be given
due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and
ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby
removed whatever impropriety might have attended the institution of the instant action in the name
of the People of the Philippines by lawyers de parte of the offended party in the criminal action in
question.
The Court deems that there has been full ventilation of the issue — of whether or not it was grave
abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will
now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which
respondent Judge has given a construction that is disputed by the People. The section reads as
follows:
SEC. 20. 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.
It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section,
namely:
 1) the right against self-incrimination — i.e., the right of a person not to be
compelled to be a witness against himself — set out in the first sentence, which is
a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is
similar to that accorded by the Fifth Amendment of the American
Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every suspect
"under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right against self-
incrimination, "No person shall be compelled to be a witness against himself," is now embodied in
Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation,
which have been made more explicit, are now contained in Section 12 of the same Article III.13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973
Constitution, is accorded to every person who gives evidence, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to
"be compelled to be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal
to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. However, the right can
be claimed only when the specific question, incriminatory in character, is actually put to the witness.
It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena,
to decline to appear before the court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer
questions. It is only when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the strength of the constitutional
guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge,
or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise
a witness of his right against self-incrimination. It is a right that a witness knows or should know,
in accordance with the well known axiom that every one is presumed to know the law, that
ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge
nor the witness can be expected to know in advance the character or effect of a question to be put
to the latter. 17
74
The right against self-incrimination is not self- executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of
rights. These rights apply to persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what makes these rights different
from that embodied in the first sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding, civil, criminal, or
administrative.
This provision granting explicit rights to persons under investigation for an offense was not in the
1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda
v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20
Section 20 states that whenever any person is "under investigation for the commission of an
offense"--
1) he shall have the right to remain silent and to counsel, and to be informed of
such right, 21
2) nor force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him; 22 and
3) any confession obtained in violation of x x (these rights shall be inadmissible
in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect. 24
He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he
so desires. Opportunity to exercise those rights must be afforded to him throughout the
interrogation. After such warnings have been given, such opportunity afforded him, the individual
may knowingly and intelligently waive these rights and agree to answer or make a statement. But
unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no
evidence obtained as a result of interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings of constitutional
rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation
is meant "questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way." 27 The situation
contemplated has also been more precisely described by this Court." 28
.. . After a person is arrested and his custodial investigation begins a confrontation
arises which at best may be tanned unequal. The detainee is brought to an army
camp or police headquarters and there questioned and "cross-examined" not only
by one but as many investigators as may be necessary to break down his morale.
He finds himself in strange and unfamiliar surroundings, and every person he
meets he considers hostile to him. The investigators are well-trained and seasoned
in their work. They employ all the methods and means that experience and study
have taught them to extract the truth, or what may pass for it, out of the detainee.
Most detainees are unlettered and are not aware of their constitutional rights. And
even if they were, the intimidating and coercive presence of the officers of the law
in such an atmosphere overwhelms them into silence. Section 20 of the Bill of
Rights seeks to remedy this imbalance.
Not every statement made to the police by a person involved in some crime is within the scope of
the constitutional protection. If not made "under custodial interrogation," or "under investigation
for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a
person went to a police precinct and before any sort of investigation could be initiated, declared that
he was giving himself up for the killing of an old woman because she was threatening to kill him
by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-
incrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already have
been ended at the time of the filing of the criminal case in court (or the public prosecutors' office).
75
Hence, with respect to a defendant in a criminal case already pending in court (or the public
prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation"
laid down by the second and subsequent sentences of Section 20, Article IV of the 1973
Constitution, for the obvious reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self- incrimination set
out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to
answer a specific incriminatory question at the time that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of giving
testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary
witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among
others-
1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf;
but if he offers himself as a witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against himself'
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which
he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or
for a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in
a civil action) who may be compelled to testify by subpoena, having only the right to refuse to
answer a particular incriminatory question at the time it is put to him-the defendant in a criminal
action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any
question. 34And, as the law categorically states, "his neglect or refusal to be a witness shall not in
any manner prejudice or be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he
does testify, then he "may be cross- examined as any other witness." He may be cross-examined as
to any matters stated in his direct examination, or connected therewith . 36 He may not on cross-
examination refuse to answer any question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him for the crime with which he is
charged.
It must however be made clear that if the defendant in a criminal action be asked a question which
might incriminate him, not for the crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that specific question, on the strength
of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the
1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution
for murder, the accused should testify in his behalf, he may not on cross-examination refuse to
answer any question on the ground that he might be implicated in that crime of murder; but he may
decline to answer any particular question which might implicate him for a different and distinct
offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing evidence,
to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for
preliminary investigation), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being interrogated by the
police: the continuing right to remain silent and to counsel, and to be informed
thereof, not to be subjected to force, violence, threat, intimidation or any other
means which vitiates the free will; and to have evidence obtained in violation of
these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT — 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such
refusal;
c) to testify in his own behalf, subject to cross-examination by
the prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question
which tends to incriminate him for some crime other than that for
which he is then prosecuted.
It should by now be abundantly apparent that respondent Judge has misapprehended the nature and
import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has
taken them as applying to the same juridical situation, equating one with the other. In so doing, he
has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to
be cogent and logical. The thesis was however so far divorced from the actual and correct state of
the constitutional and legal principles involved as to make application of said thesis to the case
before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders
were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and
set aside.
76
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have
had a hand. The constitutional rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the
first day of the administrative investigation, February 9, 1986 and agreed that the proceedings
should be recorded, the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as
Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering
to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his
part. They may not be excluded on the ground that the so-called "Miranda rights" had not been
accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right
of any person against self-incrimination when the investigation is conducted by the complaining
parties, complaining companies, or complaining employers because being interested parties, unlike
the police agencies who have no propriety or pecuniary interest to protect, they may in their over-
eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It
suffices to draw attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the employee has
been accorded due process, by which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to explain his side. The requirement
entails the making of statements, oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues
and friends. The employee may, of course, refuse to submit any statement at the investigation, that
is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would
be absurd to reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his making and
presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the
employee's statements, whether called "position paper," "answer," etc., are submitted by him
precisely so that they may be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be
brought to bear on an employee under investigation — or for that matter, on a person being
interrogated by another whom he has supposedly offended. In such an event, any admission or
confession wrung from the person under interrogation would be inadmissible in evidence, on proof
of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the
1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof, and really should not be Upon arraignment, all the accused, except the three Does who have not been identified nor
accorded any evidentiary value at all. apprehended, pleaded not guilty. 1äwphï1. ñët

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and Instance of Rizal in Quezon City.
he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal
Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary The trial opened with the following dialogue, which for the great bearing it has on this case, is here
restraining order of October 26, 1988 having become functus officio, is now declared of no further reproduced:.
force and effect.
COURT:
G.R. No. L-29169 August 19, 1968
The parties may proceed.
ROGER CHAVEZ, petitioner,
vs. FISCAL GRECIA:
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and
THE WARDEN OF THE CITY JAIL OF MANILA, respondents.
Our first witness is Roger Chavez [one of the accused].
Estanislao E. Fernandez and Fausto Arce for petitioner.
ATTY. CARBON [Counsel for petitioner Chavez]:
Office of the Solicitor General for respondents.
I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of
SANCHEZ, J.:
the Fiscal in presenting him as his witness. I object.
The thrust of petitioner's case presented in his original and supplementary petitions invoking
COURT:
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 On what ground, counsel? .
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 ATTY. CARBON:
court to forward his appeal to this Court for the reason that he was raising purely questions of law.
On the ground that I have to confer with my client. It is really surprising that at this stage,
The indictment in the court below — the third amended information — upon which the judgment without my being notified by the Fiscal, my client is being presented as witness for the
of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) prosecution. I want to say in passing that it is only at this very moment that I come to know
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with about this strategy of the prosecution.
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 COURT (To the Fiscal):
alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe,
Charlie Doe and Paul Doe.2 You are not withdrawing the information against the accused Roger Chavez by making
[him a] state witness?.
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 FISCAL GRECIA:
consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

77
 I am not making him as state witness, Your Honor. Counsel has all the assurance that the court will not require the witness to answer questions
I am only presenting him as an ordinary witness. which would incriminate him.

ATTY. CARBON: But surely, counsel could not object to have the accused called on the witnessstand.

As a matter of right, because it will incriminate my client, I object. ATTY. CARBON:

COURT: I submit.

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and xxx xxx xxx
explain to his client about the giving of his testimony.
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
xxx xxx xxx
MAY IT PLEASE THE COURT:
COURT: [after the recess]
This incident of the accused Roger Chavez being called to testify for the prosecution is
Are the parties ready? . something so sudden that has come to the knowledge of this counsel.

FISCAL: This representation has been apprised of the witnesses embraced in the information.

We are ready to call on our first witness, Roger Chavez. 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
ATTY. CARBON: hearing.

As per understanding, the proceeding was suspended in order to enable me to confer with COURT:
my client.
The court will give counsel time within which to prepare his cross-examination of this
I conferred with my client and he assured me that he will not testify for the prosecution this witness.
morning after I have explained to him the consequences of what will transpire.
ATTY. CRUZ:
COURT:
I labored under the impression that the witnesses for the prosecution in this criminal case
What he will testify to does not necessarily incriminate him, counsel. are those only listed in the information.

And there is the right of the prosecution to ask anybody to act as witness on the witness- I did not know until this morning that one of the accused will testify as witness for the
stand including the accused. prosecution.

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.
78
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 eventsto 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
79
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. 1äwphï1.ñët
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
80
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
81
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. Tañada
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
82
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, 25 While a defendant's knowledge of the facts remains concealed within his
bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.
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". 1ä wphï1.ñët
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. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain
and unequivocal, and intelligently, 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. 36Thus,
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
83
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 thereundermay 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 Q-5311, 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.
G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.
The facts are not dispute. In a criminal case pending before the Court of First Instance of the city
of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On
this case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the
petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria
Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two
competent doctors to determine if she was pregnant or not. The accused refused to obey the order
on the ground that such examination of her person was a violation of the constitutional provision
relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit the medical examination required by the court.
The sole legal issue from the admitted facts is whether the compelling of a woman to permit her
body to be examined by physicians to determine if she is pregnant, violates that portion of the
Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin
in the Constitution of the United States and practically all state constitutions and in the common
law rules of evidence, providing that no person shall be compelled in any criminal case to be a
witness against himself. (President's Instructions to the Philippine Commission; Act of Congress of
July 1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3;
Code of Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel
for petitioner argues that such bodily exhibition is an infringement of the constitutional provision;
the representative of the city fiscal contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal; while it is brought to our notice
that a judge of the same court has held on an identical question as contended for by the attorney for
the accused and petitioner.
The authorities are abundant but conflicting. What may be termed the conservative courts
emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend
84
the privilege in order that its mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey
[1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height
[1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view
and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged
with the crime of infanticide. The corner directed two physicians to go to the jail and examine her
private parts to determine whether she had recently been delivered of a child. She objected to the
examination, but being threatened with force, yielded, and the examination was had. The evidence
of these physicians was offered at the trial and ruled out. The court said that the proceeding was in
violation of the spirit and meaning of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself." Continuing, the court said: "They
might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been
pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to
look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and
been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an
examination they are of the opinion she is not a virgin, and has had a child? It is not possible that
this court has that right; and it is too clear to admit of argument that evidence thus obtained would
be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly
impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in
State vs. Height, supra, the instant case was reported by the writer with the tentative
recommendation that the court should lay down the general rule that a defendant can be compelled
to disclose only those parts of the body which are not usually covered. Buth having disabused our
minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we
think, to penetrate through the maze of law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to take our stand with what we
believe to be the reason of the case.
In contradistinction to the cases above-mentioned are others which seem to us more progressive in
nature. Among these can be prominently mentioned decisions of the United States Supreme Court,
and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice
Holmes, in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection
based upon what he termed "an extravagant extension of the Fifth Amendment," said: "The
prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition
of the use of physical or moral compulsion to extort communications from him, not an exclusion of
his body as evidence when it may be material." (See also, of same general tenor, decision of Mr.
Justice Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine
Islands, in two decisions, has seemed to limit the protection to a prohibition against compulsory
testimonial self-incrimination. The constitutional limitation was said to be "simply a prohibition
against legal process to extract from the defendant's own lips, against his will, an admission of his
guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and
the derivatory principle announced in 16 Corpus Juris, 567, 568, citing the United States Supreme
Court and the Supreme Court of the Philippine Islands as authority.)
Although we have stated s proposition previously announced by this court and by the highest
tribunal in the United States, we cannot unconcernedly leave the subject without further
consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted
the careful proviso that "we need not consider how far a court would go in compelling a man to
exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of
the dividing line between what is proper and what is improper in this very broad constitutional field.
But here before us is presented what would seem to be the most extreme case which could be
imagined. While the United States Supreme Court could nonchalantly decree that testimony that an
accused person put on a blouse and it fitted him is not a violation of the constitutional provision,
while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve
in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit
substances taken from the person of an accused to be offered in evidence, none of these even
approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body
in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a
principle which would permit of such a result by adhering steadfastly to the proposition that the
purpose of the constitutional provision was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the
Philippines, being in the agrreable state of breaking new ground, would rather desire our decision
to rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition
and precedent. Moreover, we believe that an unbiased consideration of the history of the
constitutional provisions will disclose that our conclusion is in exact accord with the causes which
led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in
early days, but not in the other legal systems of the world, in a revolt against the thumbscrew and
the rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused
person by which to extort unwilling confessions with the ever present temptation to commit the
crime of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial
compulsion. As forcing a man to be a witness against himself was deemed contrary to the
fundamentals of republican government, the principle was taken into the American Constitutions,
and from the United States was brought to the Philippine Islands, in exactly as wide — but no wider
— a scope as it existed in old English days. The provision should here be approached in no blindly
worshipful spirit, but with a judicious and a judicial appreciation of both its benefits and its abuses.
(Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L.
R., 1902, p. 610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904],
Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back once more to elements and
ponder on what is the prime purpose of a criminal trial. As we view it, the object of having criminal
85
laws is to purgue the community of persons who violate the laws to the great prejudice of their
fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then
provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid
as to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person
should be afraid of the use of any method which will tend to establish the truth. For instance, under
the facts before us, to use torture to make the defendant admit her guilt might only result in including
her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to
be detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty
person.
Obviously a stirring plea can be made showing that under the due process of law cause of the
Constitution every person has a natural and inherent right to the possession and control of his own
body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such
inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze.
As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To
compel any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger,
without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well
suggested by the same court, even superior to the complete immunity of a person to be let alone is
the inherent which the public has in the orderly administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by forcing them to answer, without any mental
evasion, questions which are put to them; and such a tendency to degrade the witness in public
estimation does not exempt him from the duty of disclosure. Between a sacrifice of the
ascertainment of truth to personal considerations, between a disregard of the public welfare for
refined notions of delicacy, law and justice cannot hesitate.
The protection of accused persons has been carried to such an unwarranted extent that criminal
trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against
such a loose extension of constitutional guaranties we are here prepared to voice our protest.
Fully conscious that we are resolving a most extreme case in a sense, which on first impression is
a shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental
influences. Once again we lay down the rule that the constitutional guaranty, that no person shall
be compelled in any criminal case to be a witness against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course,
be decided as cases arise.
It is a reasonable presumption that in an examination by reputable and disinterested physicians due
care will be taken not to use violence and not to embarass the patient any more than is absolutely
necessary. Indeed, no objection to the physical examination being made by the family doctor of the And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the
accused or by doctor of the same sex can be seen. constitutional provision contained in the Jones Law and incorporated in General Orders, No. 58.

Although the order of the trial judge, acceding to the request of the assistant fiscal for an
examination of the person of the defendant by physicians was phrased in absolute terms, it should,
nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The
writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner.
So ordered.
G.R. No. 32025 September 23, 1929
Therefore, the question raised is to be decided by examining whether the constitutional provision
invoked by the petitioner prohibits compulsion to execute what is enjoined upon him by the order
against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se
le obligara a declarar en contra suya en ningun proceso criminal" and has been incorporated in
our Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) and section 56.

FRANCISCO BELTRAN, petitioner, As to the extent of the privilege, it should be noted first of all, that the English text of the Jones
vs. Law, which is the original one, reads as follows: "Nor shall be compelled in any criminal case to be
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial a witness against himself."
Fiscal of Isabela,respondents.
This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned
Gregorio P. Formoso and Vicente Formoso for petitioner. with a principle contained both in the Federal constitution and in the constitutions of several states
The respondents in their own behalf. of the United States, but expressed differently, we should take it that these various phrasings have
a common conception.
ROMUALDEZ, J.:
In the interpretation of the principle, nothing turns upon the variations of wording in the
This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent constitutional clauses; this much is conceded (ante, par. 2252). It is therefore immaterial
judge ordered him to appear before the provincial fiscal to take dictation in his own handwriting that the witness is protected by one constitution from 'testifying', or by another from
from the latter. 'furnishing evidence', or by another from 'giving evidence,' or by still another from 'being
a witness.' These various phrasings have a common conception, in respect to the form of
The order was given upon petition of said fiscal for the purpose of comparing the petitioner's the protected disclosure. What is that conception? (4 Wigmore on Evidence, p. 863, 1923
handwriting and determining whether or not it is he who wrote certain documents supposed to be ed.)
falsified.
As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or
There is no question as to the facts alleged in the complaint filed in these proceedings; but the furnishing of evidence.
respondents contend that the petitioner is not entitled to the remedy applied for, inasmuch as the
order prayed for by the provincial fiscal and later granted by the court below, and again which the The rights intended to be protected by the constitutional provision that no man accused of
instant action was brought, is based on the provisions of section 1687 of the Administrative Code crime shall be compelled to be a witness against himself is so sacred, and the pressure
and on the doctrine laid down in the cases of People vs. Badilla (48 Phil., 718); United States vs. toward their relaxation so great when the suspicion of guilt is strong and the evidence
Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong (36 Phil., 735), cited by counsel for the obscure, that is the duty of courts liberally to construe the prohibition in favor of personal
respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the
in question. well-established doctrine that the constitutional inhibition is directed not merely to giving
of oral testimony, but embraces as well the furnishing of evidence by other means than by
Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon word of mouth, the divulging, in short, of any fact which the accused has a right to hold
motion of the fiscal, may compel witnesses to be present at the investigation of any crime or secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)
misdemeanor. But this power must be exercised without prejudice to the constitutional rights of
persons cited to appear.
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The question, then, is reduced to a determination of whether the writing from the fiscal's dictation
by the petitioner for the purpose of comparing the latter's handwriting and determining whether he
wrote certain documents supposed to be falsified, constitutes evidence against himself within the
scope and meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain
writing or signature is in his own hand, he may on cross-examination be compelled to write in open
court in order that the jury maybe able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the
defendant, in offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the
defendant to write his name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We are not concerned here
with the defendant, for it does not appear that any information was filed against the petitioner for
the supposed falsification, and still less as it a question of the defendant on trial testifying and under
cross-examination. This is only an investigation prior to the information and with a view to filing
it. And let it further be noted that in the case of Sprouse vs. Com., the defendant performed the act
voluntarily.
We have also come upon a case wherein the handwriting or the form of writing of the defendant
was obtained before the criminal action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs.
Com., the defendant voluntarily offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the defendant's right to
decline to write, and to the fact that he voluntarily wrote. The following appears in the body of said
decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to
the latter's request, and we can discover no ground upon which the writings thus produced
can be excluded from the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W.,
199), that the defendant could not be compelled to write his name, the doctrine being stated as
follows:
The defendant being sworn in his own behalf denied the endorsement.
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He was then cross-examined the question in regard to his having signed papers not in the
case, and was asked in particular whether he would not produce signatures made prior to
the note in suit, and whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings that complaint is made.
The object of the questions was to bring into the case extrinsic signatures, for the purpose
of comparison by the jury, and we think that the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:
Measuring or photographing the party is not within the privilege. Nor it 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. Requiring him to make specimens
of handwriting is no more than requiring him to move his body . . ." but he cites no case in
support of his last assertion on specimens of handwriting. We note that in the same
paragraph 2265, where said authors treats of "Bodily Exhibition." and under preposition
"1. A great variety of concrete illustrations have been ruled upon," he cites many cases,
among them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no
application to the case at bar because there the defendant voluntary gave specimens of his
handwriting, while here the petitioner refuses to do so and has even instituted these
prohibition proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish
a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly
states. Except that it is more serious, we believe the present case is similar to that of producing
documents or chattels in one's possession. And as to such production of documents or chattels.
which to our mind is not so serious as the case now before us, the same eminent Professor Wigmore,
in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that the
production of documents or chattels by a person (whether ordinary witness or party-
witness) in response to a subpoena, or to a motion to order production, or to other form
of process treating him as a witness ( i.e. as a person appearing before a tribunal to furnish
testimony on his moral responsibility for truthtelling), may be refused under the protection
of the privilege; and this is universally conceded. (And he cites the case of People vs.
Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a similarity between one who
is compelled to produce a document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling the production of
documents or chattels, because here the witness is compelled to write and create, by means of the
act of writing, evidence which does not exist, and which may identify him as the falsifier. And for
this reason the same eminent author, Professor Wigmore, explaining the matter of the production
of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and though the documents or
chattels be already in existence and not desired to be first written and created by
testimonial act or utterance of the person in response to the process, still no line can be
drawn short of any process which treats him as a witness; because in virtue it would be at
any time liable to make oath to the identity or authenticity or origin of the articles produced.
(Ibid., pp. 864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's
handwriting is not granted, the crime would go unpunished. Considering the circumstance that the
petitioner is a municipal treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to
obtain specimen or specimens without resorting to the means complained herein, that is no reason
for trampling upon a personal right guaranteed by the constitution. It might be true that in some
cases criminals may succeed in evading the hand of justice, but such cases are accidental and do
not constitute the raison d' etre of the privilege. This constitutional privilege exists for the
protection of innocent persons.
any positive act, much less a testimonial act; she was only enjoined from something preventing the
examination; all of which is very different from what is required of the petitioner of the present
case, where it is sought to compel him to perform a positive, testimonial act, to write and give a
specimen of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs.
Summers, it was sought to exhibit something already in existence, while in the case at bar, the
question deals with something not yet in existence, and it is precisely sought to compel the petitioner
to make, prepare, or produce by this means, evidence not yet in existence; in short, to create this
evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to the case of United States vs. Ong
Siu Hong (36 Phil., 735), wherein the defendant was not compelled to perform any testimonial act,
but to take out of his mouth the morphine he had there. It was not compelling him to testify or to be
a witness or to furnish, much less make, prepare, or create through a testimonial act, evidence for
his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the respondents and those
under their orders desist and abstain absolutely and forever from compelling the petitioner to take
down dictation in his handwriting for the purpose of submitting the latter for comparison.

With respect to the judgments rendered by this court and cited on behalf of the respondents, it should
be remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that the
defendants and other witnesses were questioned by the fiscal against their will, and if they did not
refuse to answer, they must be understood to have waived their constitutional privilege, as they
could certainly do.

The privilege not to give self-incriminating evidence, while absolute when claimed, maybe
waived by any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases
noted.)

The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the
defendant did not opposethe extraction from his body of the substance later used as evidence against
him.

In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to
rest its decision on the reason of the case rather than on blind adherence to tradition. The said reason
of the case there consisted in that it was the case of the examination of the body by physicians,
which could be and doubtless was interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of testimonial act. In reality she was not compelled to execute

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