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Art. 134 Rebellion G.R. No. 159085 February 3, 2004

SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA, represented by REP. RENATO MAGTUBO petitioners, vs EXECUTIVE SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE, respondents. x------------------------x G.R. No. 159103 February 3, 2004

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE, petitioners, vs HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and HON. SECRETARY JOSE LINA, JR., respondents. x------------------------x G.R. No. 159185 February 3, 2004

REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners, vs PRESIDENT GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G. ROMULO,respondents. x------------------------x G.R. No. 159196 February 3, 2004

AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents. They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP).1 In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring "a state of rebellion" and calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full: PROCLAMATION NO. 427 DECLARING A STATE OF REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion. In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights. General Order No. 4 is similarly worded: GENERAL ORDER NO. 4

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DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et seq. of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion. I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435: DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was declared; WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the Constitution, the Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the rebellion; WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively suppressed and quelled the rebellion. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist. In the interim, several petitions were filed before this Court challenging the validity of Proclamation No. 427 and General Order No. 4. In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),2 party-list organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces.3 They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period.4 Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) are officers/members of the Social Justice Society (SJS), "Filipino citizens, taxpayers, law professors and bar reviewers."5 Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution does not authorize the declaration of a state of rebellion.6 They contend that the declaration is a "constitutional anomaly" that "confuses, confounds and misleads" because "[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens."7 Petitioners also submit that the proclamation is a circumvention of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law.8 Finally, they contend that the presidential issuances cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the President.9 In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo), petitioners brought suit as citizens and as Members of the House of Representatives whose rights, powers and functions were allegedly affected by the declaration of a state of rebellion.10 Petitioners do not challenge the power of the President to call out the Armed Forces.11 They argue, however, that the declaration of a state of rebellion is a "superfluity," and is actually an exercise of emergency powers.12 Such exercise, it is contended, amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution.13 In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential issuances as "an unwarranted, illegal and abusive exercise of a martial law power that has no basis under the Constitution."14 In the main, petitioner fears that the declaration of a state of rebellion "opens the door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion.15 Required to comment, the Solicitor General argues that the petitions have been rendered moot by the lifting of the declaration.16 In addition, the Solicitor General questions the standing of the petitioners to bring suit.17 The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases, judicial power being limited to the determination of "actual controversies."18 Nevertheless, courts will decide a question, otherwise moot, if it is "capable of repetition yet evading review."19 The case at bar is one such case. Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On that occasion, "'an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons' assaulted and attempted to break into Malacaang."20 Petitions were filed before this Court assailing the validity of

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the President's declaration. Five days after such declaration, however, the President lifted the same. The mootness of the petitions in Lacson v. Perez and accompanying cases21 precluded this Court from addressing the constitutionality of the declaration. To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President's calling out power, the mootness of the petitions notwithstanding. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to challenge the subject issuances. In Philippine Constitution Association v. Enriquez,22 this Court recognized that: To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Petitioner Members of Congress claim that the declaration of a state of rebellion by the President is tantamount to an exercise of Congress' emergency powers, thus impairing the lawmakers' legislative powers. Petitioners also maintain that the declaration is a subterfuge to avoid congressional scrutiny into the President's exercise of martial law powers. Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus standi to bring suit. "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."23 Petitioners Sanlakas and PM assert that: 2. As a basic principle of the organizations and as an important plank in their programs, petitioners are committed to assert, defend, protect, uphold, and promote the rights, interests, and welfare of the people, especially the poor and marginalized classes and sectors of Philippine society. Petitioners are committed to defend and assert human rights, including political and civil rights, of the citizens. 3. Members of the petitioner organizations resort to mass actions and mobilizations in the exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of expression under Section 4, Article III of the 1987 Constitution, as a vehicle to publicly ventilate their grievances and legitimate demands and to mobilize public opinion to support the same.24 [Emphasis in the original.] Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez: petitioner has not demonstrated any injury to itself which would justify the resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal rights has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that it[']s right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.25 Even assuming that petitioners are "people's organizations," this status would not vest them with the requisite personality to question the validity of the presidential issuances, as this Court made clear in Kilosbayan v. Morato:26 The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decisionmaking in the courts from decisionmaking in the political departments of the government and bars the bringing of suits by just any party.27 That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them with standing. A taxpayer may bring suit where the act complained of directly involves the illegal disbursement of public funds derived from taxation.28 No such illegal disbursement is alleged. On the other hand, a citizen will be allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.29 Again, no such injury is alleged in this case. Even granting these petitioners have standing on the ground that the issues they raise are of transcendental importance, the petitions must fail. It is true that for the purpose of exercising the calling out power the Constitution does not require the President to make a declaration of a state of rebellion. Section 18, Article VII provides: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines andwhenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it,

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he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis supplied.] The above provision grants the President, as Commander-in-Chief, a "sequence" of "graduated power[s]."30 From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ ofhabeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power.31 However, as we observed in Integrated Bar of the Philippines v. Zamora,32 "[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that 'whenever it becomes necessary,' the President may call the armed forces 'to prevent or suppress lawless violence, invasion or rebellion.'" Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-in-Chief powers but, first and foremost, with Executive powers. Section 1, Article VII of the 1987 Philippine Constitution states: "The executive power shall be vested in the President." As if by exposition, Section 17 of the same Article provides: "He shall ensure that the laws be faithfully executed." The provisions trace their history to the Constitution of the United States. The specific provisions of the U.S. Constitution granting the U.S. President executive and commander-in-chief powers have remained in their original simple form since the Philadelphia Constitution of 1776, Article II of which states in part: Section 1. 1. The Executive Power shall be vested in a President of the United States of America . . . . .... Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United States. . . . .... Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power] Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the presidential oath of office, the President serves as Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.33 First to find definitive new piers for the authority of the Chief of State, as the protector of the people, was President Andrew Jackson. Coming to office by virtue of a political revolution, Jackson, as President not only kept faith with the people by driving the patricians from power. Old Hickory, as he was fondly called, was the first President to champion the indissolubility of the Union by defeating South Carolina's nullification effort.34 The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from South Carolina. Its State Legislature ordered an election for a convention, whose members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in 1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling punitive laws aimed at any who sought to pay or collect customs duties.35 Jackson bided his time. His task of enforcement would not be easy. Technically, the President might send troops into a State only if the Governor called for help to suppress an insurrection, which would not occur in the instance. The President could also send troops to see to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at individual citizens, and provided no enforcement machinery against violation by a State. Jackson prepared to ask Congress for a force bill.36 In a letter to a friend, the President gave the essence of his position. He wrote: ". . . when a faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of the people composing this Union have a perfect right to coerce them to obedience." Then in a Proclamation he issued on December 10, 1832, he called upon South Carolinians to realize that there could be no peaceable interference with the execution of the laws, and dared them, "disunion by armed force is treason. Are you ready to incur its guilt?"37

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The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures began to adopt resolutions of agreement, and the President announced that the national voice from Maine on the north to Louisiana on the south had declared nullification and accession "confined to contempt and infamy."38 No other President entered office faced with problems so formidable, and enfeebled by personal and political handicaps so daunting, as Abraham Lincoln. Lincoln believed the President's power broad and that of Congress explicit and restricted, and sought some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the President's designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision and joined them as "the war power" which authorized him to do many things beyond the competence of Congress.39 Lincoln embraced the Jackson concept of the President's independent power and duty under his oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared that "the Executive found the duty of employing the war power in defense of the government forced upon him. He could not but perform the duty or surrender the existence of the Government . . . ." This concept began as a transition device, to be validated by Congress when it assembled. In less than two-years, it grew into an independent power under which he felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation Proclamation, and restore reoccupied States.40 Lincoln's Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the proclamation, would be to recapture forts, places and property, taking care "to avoid any devastation, any destruction of or interference with property, or any disturbance of peaceful citizens."41 Early in 1863, the U.S. Supreme Court approved President Lincoln's report to use the war powers without the benefit of Congress. The decision was handed in the celebrated Prize Cases42 which involved suits attacking the President's right to legally institute a blockade. Although his Proclamation was subsequently validated by Congress, the claimants contended that under international law, a blockade could be instituted only as a measure of war under the sovereign power of the State. Since under the Constitution only Congress is exclusively empowered to declare war, it is only that body that could impose a blockade and all prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincoln's right to act as he had.43 In the course of time, the U.S. President's power to call out armed forces and suspend the privilege of the writ ofhabeas corpus without prior legislative approval, in case of invasion, insurrection, or rebellion came to be recognized and accepted. The United States introduced the expanded presidential powers in the Philippines through the Philippine Bill of 1902.44 The use of the power was put to judicial test and this Court held that the case raised a political question and said that it is beyond its province to inquire into the exercise of the power.45 Later, the grant of the power was incorporated in the 1935 Constitution.46 Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the trustee of all the people. Guided by the maxim that "Public office is a public trust," which he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who defied a court injunction. The injunction banned all picketing and distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the union president, was convicted of contempt of court. Brought to the Supreme Court, the principal issue was by what authority of the Constitution or statute had the President to send troops without the request of the Governor of the State.47 In In Re: Eugene Debs, et al,48 the Supreme Court upheld the contempt conviction. It ruled that it is not the government's province to mix in merely individual present controversies. Still, so it went on, "whenever wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully discharge those constitutional duties."49 Thus, Cleveland's course had the Court's attest. Taking off from President Cleveland, President Theodore Roosevelt launched what political scientists dub the "stewardship theory." Calling himself "the steward of the people," he felt that the executive power "was limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers."50 The most far-reaching extension of presidential power "T.R." ever undertook to employ was his plan to occupy and operate Pennsylvania's coal mines under his authority as Commander-in-Chief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the stubborn operators, so that coal production would begin again.51 Eventually, the power of the State to intervene in and even take over the operation of vital utilities in the public interest was accepted. In the Philippines, this led to the incorporation of Section 6,52 Article XIII of the 1935 Constitution, which was later carried over with modifications in Section 7,53 Article XIV of the 1973 Constitution, and thereafter in Section 18,54 Article XII of the 1987 Constitution. The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State. In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the "unitary and highly centralized" nature of the Philippine government. She noted that, "There is no counterpart of the several states of the American union which have reserved powers under the United States constitution." Elaborating on the constitutional basis for her argument, she wrote: . The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: "The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives." "The executive power shall be vested in a President of the Philippines." The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law." These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out inOcampo v. Cabangis, "a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices.55

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The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines."56 Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the President's powers as Chief Executive. In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.57 [Underscoring supplied. Italics in the original.] Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987, which states: SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. [Emphasis supplied.] The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity.58 At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it.59 Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Court's mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights.60 Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus,61 then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions.62 At any rate, the presidential issuances themselves call for the suppression of the rebellion "with due regard to constitutional rights." For the same reasons, apprehensions that the military and police authorities may resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court held that "[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court,63 if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a 'state of rebellion.'"64 In other words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.65 The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that military tribunals have replaced civil courts in the "theater of war" or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers. Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution: Sec. 23. (1) . (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. WHEREFORE, the petitions are hereby DISMISSED. 2) G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001

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MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESO LUTION On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court (1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political partyLaban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).1wphi1.nt Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar. G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners

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for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781 The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion" Thus, we held inIntegrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x (at pp.22-23) The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted. G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacaang. 3) G.R. Nos. 172070-72 June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,Petitioners, vs. SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE,Respondents.

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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO, CRISPIN B. BELTRAN, and RAFAEL V. MARIANO, Petitioners, vs. RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUO, in his capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y. VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA (Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE (PNP), Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity as Presiding Judge of Regional Trial Court of Makati City, Branch 150, Respondents. DECISION The Case These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners cases. The Facts Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio), and Rafael V. Mariano (Mariano),1 are members of the House of Representatives representing various party-list groups.2Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati. G.R. No. 175013 (The Beltran Petition) Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of National Emergency," police officers3 arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who claimed to have been present at the rally. The inquest prosecutor4indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5 The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance." On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino). Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya). In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltrans motion. Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin Beltrans prosecution. In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.

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G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions) Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being subjected to warrantless arrest. During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDGs letters only on 17 March 2006. Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the media regarding petitioners case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases. However, the panel of prosecutors denied petitioners motions on 4 April 2006. Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006. Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of Criminal Case No. 06-944. In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06-944 has mooted the Maza petition. The Issues The petitions raise the following issues: 1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether there is probable cause to indict Beltran for Rebellion; and 2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with the prosecution of Criminal Case No. 06-944.13 The Ruling of the Court We find the petitions meritorious. On the Beltran Petition The Inquest Proceeding against Beltran for Rebellion is Void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17 Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides: Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: a) recommend the release of the person arrested or detained;

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b) note down the disposition on the referral document; c) prepare a brief memorandum indicating the reasons for the action taken; and d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action. Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied) For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void.19 Beltran would have been entitled to a preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which effectively took the place of such proceeding. There is No Probable Cause to Indict Beltran for Rebellion. Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutors determination of probable cause for otherwise, courts would be swamped with petitions to review the prosecutors findings in such investigations.21However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutors findings.22 This exception holds true here. Rebellion under Article 134 of the Revised Penal Code is committed [B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. The elements of the offense are: 1. That there be a (a) public uprising and (b) taking arms against the Government; and 2. That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.23 Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.24 The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit in Beltrans contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPPs "10th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groups affiliated with the CPP. The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion. In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely contained a general conclusion without any specific act showing such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x."30Such a general conclusion does not establish probable cause. In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25 February 2006,31as basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among others.

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The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in their possession when they conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed to his statement before respondent prosecutor Velasco. Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial determination of probable cause. Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not improve the prosecutions case. Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it. The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies knowing Beltran. To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.34 On the Ladlad and Maza Petitions The Preliminary Investigation was Tainted With Irregularities. As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However, such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner36 or (b) to afford adequate protection to constitutional rights.37 The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions. The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus: Procedure.The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied)

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Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112. Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG letters.1a\^/phi1.net These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainants antics during the investigation, and distributing copies of a witness affidavit to members of the media knowing that petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but also lent credence to petitioners claim that the entire proceeding was a sham. A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those accused as principals. Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net On Respondent Prosecutors Lack of Impartiality We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then its up to the [C]ourt to decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable cause. A Final Word The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus: [W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be publics perception of the impartiality of the prosecutor be enhanced.441a\^/phi1.net WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452 and 06-944. Art. 136 Conspiracy and proposal to commit rebellion 4) G.R. No. 166111 August 25, 2005 STANDARD ELECTRIC MANUFACTURING CORPORATION, Petitioners, vs. STANDARD ELECTRIC EMPLOYEES UNION-NAFLU- KMU and ROGELIO JAVIER, Respondents. Before us is a petition for review on certiorari seeking to review the Decision1 and Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 76657, which annulled and set aside the Resolution of the National Labor Relations Commission (NLRC) affirming the Labor Arbiters Decision3 in NLRC NCR Case No. 00-08-04760-96. Rogelio Javier was employed by the Standard Electric Manufacturing Corporation (SEMC) on January 15, 1973 as radial spot machine operator in its Production Department. Javier was a member of the Standard Electric Employees Union-NAFLU (Union).4 On July 31, 1995, Javier failed to report for work. He failed to notify the SEMC of the reason for his absences. On August 9, 1995, he was arrested and detained for the charge of rape upon complaint of his neighbor, Genalyn Barotilla. After the requisite preliminary investigation, an Information for rape was filed in the Regional Trial Court (RTC) of Pasig, docketed as Criminal Case No. 108593.5 On January 13, 1996, the SEMC received a letter6 from Javier, through counsel, informing the SEMC that Javier was detained for the charge of rape and for that reason failed to report for work. He requested the SEMC to defer the implementation of its intention to dismiss him, citing the ruling of this Court in Magtoto v. NLRC.7 The SEMC denied Javiers request and issued a Memorandum terminating his employment for (a) having been absent without leave (AWOL) for more than fifteen days from July 31, 1995; and (b) for committing rape.8

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On May 17, 1996, the RTC issued an Order9 granting Javiers demurrer to evidence and ordered his release from jail. Shortly thereafter, Javier reported for work, but the SEMC refused to accept him back. A grievance meeting between the Union, Javier and the SEMC was held, but SEMC refused to re-admit Javier. On August 2, 1996, the Union and Javier filed a Complaint10 for illegal dismissal against the SEMC before the NLRC. He averred that since the reason for his detention for rape was nonexistent, the termination of his employment was illegal. Javier cited the ruling of this Court in Magtoto v. NLRC.11 For its part, the SEMC averred that Javiers prolonged absences caused irreparable damages to its orderly operation; he had to be replaced so that the continuity and flow of production would not be jeopardized. It could not afford to wait for Javiers indefinite return from detention, if at all. The SEMC insisted that conformably with its Rules and Regulations, it was justified in dismissing Javier for being absent without leave for fifteen days or so. On January 14, 1997, the Labor Arbiter rendered judgment ordering the dismissal of the complaint.12 The Labor Arbiter ruled that the complaint was within the exclusive jurisdiction of the Voluntary Arbitrators or Panel of Arbitrators. On appeal, the NLRC reversed the Labor Arbiters decision and ruled that the latter had jurisdiction over the complaint; it thus ordered the remand of the case to the Labor Arbiter for resolution on the merits.13 On August 16, 1999, the Labor Arbiter rendered judgment ordering the dismissal of the complaint.14 However, the SEMC was ordered to pay separation pay to the complainant. The dispositive portion reads: WHEREFORE, in view of the foregoing, the complaint for illegal dismissal is hereby ordered DISMISSED for lack of merit. The respondents Standard Electric Manufacturing Corporation and Mr. Jose Uy are, however, ordered to pay complainant Rogelio Javier the amount of SEVENTY-ONE THOUSAND SEVEN HUNDRED SIXTY PESOS (P71,760.00) representing his financial assistance/separation pay. SO ORDERED.15 On appeal, the NLRC affirmed the Labor Arbiters ruling in its Resolution of September 24, 2002. The NLRC declared that: Appellants contention is baseless. A perusal of the evidence on record clearly shows that prior to his dismissal from his job by respondents-appellees, he was made to explain his side (Exhibit "5," respondents Formal Offer of Evidence). Evidence on record further shows that a grievance machinery as provided for in the CBA was activated by respondents-appellees for the purpose of affording complainant a chance to present his side prior to his dismissal. (Exhibits "4" to "4-b," respondents Formal Offer of Evidence). Considering the adequate evidence presented by respondents-appellants on which the findings of the Labor Arbiter were based, this Commission finds no merit on complainants-appellants contention that the Labor Arbiter had committed serious errors in his findings of facts and the law in this instant case. Hence, the assailed decision must stand for "the matter of evaluating the merits and demerits of the case, as long as the Decision is supported by the facts and the evidence, is left to the sound discretion of the Labor Arbiter." (Metropolitan Bank and Trust Company vs. NLRC, et al., 235 SCRA 400, 403). WHEREFORE, in the light of the foregoing premises, [the] Decision of the Labor Arbiter dated August 16, 1999 is hereby AFFIRMED. SO ORDERED.16 When the NLRC denied the motion for reconsideration of the said decision, Javier and the Union filed a petition forcertiorari with the CA, questioning such ruling, as follows: I PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN NOT HOLDING THAT RESPONDENT COMPANY VIOLATED PETITIONER ROGELIO JAVIERS RIGHT TO PRIOR NOTICE RELATIVE TO THE LATTERS DISMISSAL. II PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PETITIONER ROGELIO JAVIER WENT AWOL (ABSENCE WITHOUT LEAVE) FROM HIS JOB. III PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT APPLYING THE RULING IN MAGTOTO VS. NLRC TO THE INSTANT CASE.17 In the Decision18 dated August 19, 2004, the CA reversed the findings of the Labor Arbiter and the NLRC. Thefallo of the decision reads: WHEREFORE, the NLRCs Resolution dated September 24, 2002 is ANNULLED and SET ASIDE. Private respondent Standard Electric Manufacturing Corporation is hereby ORDERED to REINSTATE Rogelio Javier to his former position, without loss of seniority rights and other privileges appurtenant thereto, with full backwages from the time of his dismissal until he is actually reinstated, or to pay him separation pay, if reinstatement is no longer feasible. SO ORDERED. The appellate court cited the rulings of this Court in Magtoto v. NLRC19 and City Government of Makati City v. Civil Service Commission20 as precedents. It declared that it was not Javiers intention to abandon his job; his incarceration reasonably justified his failure to report for work and negated the theory that he was on AWOL. Likewise, the CA held that Javier could not be terminated on the ground of commission of a crime, as when he was acquitted of the rape charges, the second ground relied upon by the

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SEMC ceased to have factual basis. Hence, despite the fact that Javier was allegedly afforded the opportunity to explain his side, the same was unnecessary since, in the first place, there was no just or authorized cause for the dismissal. The motion for reconsideration seasonably filed by the SEMC on August 19, 2004 was denied by the CA in its November 23, 2004 Resolution.21 Hence, this recourse. The issues posed by the petitioner are the following: I WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED PATENT AND REVERSIBLE ERROR IN APPLYING THE CASE OF MAGTOTO VS. NLRC IN THIS CASE. II WHETHER OF NOT THE HONORABLE COURT OF APPEALS COMMITTED PATENT AND REVERSIBLE ERROR IN APPLYING THE CASE OF CITY GOVERNMENT OF MAKATI CITY IN THIS CASE. III WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED PATENT AND REVERSIBLE ERROR IN REINSTATING [RESPONDENT] ROGELIO JAVIER AND GRANTING HIM FULL BACKWAGES. IV WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED PATENT AND REVERSIBLE ERROR IN TOTALLY DISREGARDING THE FINDINGS OF THE NATIONAL LABOR RELATIONS COMMISSION AND THE LABOR ARBITER A QUO.22 The Court finds that the petition is bereft of merit. The petitioner asserts that the ruling of the Court in Magtoto finds no application in the present case. It argues that in Magtoto, no criminal information was filed in the regular court against the employee, as the city prosecutor found no probable cause to hold the respondent therein for trial. The petitioner argues that respondent Javier was indicted for the crime of rape in the RTC. Another difference, the petitioner points out, is that the employee in the cited case was dismissed solely on account of his absences during his imprisonment; respondent Javier was terminated due to truancy prior to his detention from July 31, 1995, to his detention for rape on August 9, 1995, until his release on May 24, 1996. Respondent Javier never informed the petitioner why he was absent on the said dates, and subsequent thereto. It was only on January 13, 1996 that respondent Javier, through his counsel, informed the petitioner of his detention for rape for the first time. The petitioner avers that the ruling of this Court in City Government of Makati City is not applicable because respondent Javier was dismissed on a demurrer to evidence, and not because he did not commit the offense alleged. The case was dismissed because of the prosecutions failure to prove his guilt beyond reasonable doubt. In marked contrast, the petitioner notes, the employee in City Government of Makati City was acquitted by reason of the prosecutions failure to prove her complicity in the crime. The petitioner maintains that the mere filing of the Information for the crime of rape against respondent Javier rendered its Rules and Regulations operational, particularly Serious Offense No. 7. It avers that substantial proof, not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action over an erring employee. The petitioners contentions are wrong. Respondent Javier was dismissed by the petitioner effective February 5, 1996 for (a) being AWOL from July 31, 1995 up to January 30, 1996; and (b) committing rape. However, on demurrer to evidence, respondent Javier was acquitted of the charge. With respondent Javiers acquittal, the cause of his dismissal from his employment turned out to be non-existent. In the Magtoto case, Alejandro Jonas Magtoto was arrested by virtue of an Arrest, Search and Seizure Order dated September 1, 1980. He was charged with violation of Article 136 (Conspiracy and Proposal to Commit Rebellion) and Article 138 (Inciting to Rebellion or Insurrection) of the Revised Penal Code (RPC). Although Magtoto informed his employer and pleaded that he be considered as "on leave" until released, his employer denied the request. On April 10, 1981, or about seven (7) months after his arrest, Magtoto was released after the City Fiscal dismissed the criminal charges for lack of evidence. On the same date, he informed his employer of his intent to start working again, but the employer rejected the offer. In ruling that his termination was illegal, the Supreme Court ruled as follows: The employer tries to distance itself from the detention by stressing that the petitioner was dismissed due to prolonged absence. However, Mr. Magtoto could not report for work because he was in a prison cell. The detention cannot be divorced from prolonged absence. One caused the other. Since the causes for the detention, which in turn gave the employer a ground to dismiss the petitioner, proved to be non-existent, we rule that the termination was illegal and reinstatement is warranted. A non-existent cause for dismissal was explained in Pepito v. Secretary of Labor (96 SCRA 454). "... A distinction, however, should be made between a dismissal without cause and a dismissal for a false or non-existent cause. In the former, it is the intention of the employer to dismiss his employee for no cause whatsoever, in which case the Termination Pay Law would apply. In the latter case, the employer does not intend to dismiss the employee but for a specific cause which turns out to be false or non-existent. Hence, absent the reason which gave rise to his separation from employment, there is no intention on the part of the employer to dismiss the employee concerned. Consequently, reinstatement is in order. And this is the situation here. Petitioner was separated because of his alleged involvement in the pilferage in question. However, he was absolved from any responsibility therefor by the court. The cause for his dismissal having been proved non-existent or false, his reinstatement is warranted. It would be unjust and unreasonable for the Company to dismiss petitioner after the latter had proven himself innocent of the cause for which he was dismissed."23

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The facts in Pedroso v. Castro24 are similar to the set of facts in the present case. The petitioners therein were arrested and detained by the military authorities by virtue of a Presidential Commitment Order allegedly for the commission of Conspiracy to Commit Rebellion under Article 136 of the RPC. As a result, their employer hired substitute workers to avoid disruption of work and business operations. They were released when the charges against them were not proven. After incarceration, they reported back to work, but were refused admission by their employer. The Labor Arbiter and the NLRC sustained the validity of their dismissal. Nevertheless, this Court again held that the dismissed employees should be reinstated to their former positions, since their separation from employment was founded on a false or non-existent cause; hence, illegal. Respondent Javiers absence from August 9, 1995 cannot be deemed as an abandonment of his work. Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain equivocal acts. To constitute as such, two requisites must concur: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by some overt acts, with the second element being the more determinative factor. Abandonment as a just ground for dismissal requires clear, willful, deliberate, and unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment.25 Moreover, respondent Javiers acquittal for rape makes it more compelling to view the illegality of his dismissal. The trial court dismissed the case for "insufficiency of evidence," and such ruling is tantamount to an acquittal of the crime charged, and proof that respondent Javiers arrest and detention were without factual and legal basis in the first place. The petitioner acted with precipitate haste in terminating respondent Javiers employment on January 30, 1996, on the ground that he had raped the complainant therein. Respondent Javier had yet to be tried for the said charge. In fine, the petitioner prejudged him, and preempted the ruling of the RTC. The petitioner had, in effect, adjudged respondent Javier guilty without due process of law. While it may be true that after the preliminary investigation of the complaint, probable cause for rape was found and respondent Javier had to be detained, these cannot be made as legal bases for the immediate termination of his employment. Moreover, the petitioner did not accord respondent Javier an opportunity to explain his absences from July 31, 1995. The petitioners reliance on the alleged Letter dated August 17, 1995 is misplaced. There is no evidence on record that respondent Javier received such letter, and its sudden presence is highly suspect. The Court agrees with respondent Javiers observation that the letter was not mentioned nor annexed in the petitioners Position Paper, Rejoinder and even in its Opposition to the Appeal. The letter surfaced only on a much later date, in 1999, when it was formally offered in evidence26 and referred to in the petitioners Memorandum27 before the Labor Arbiter a clear inference that the said letter was but an afterthought to justify petitioners termination of respondent Javiers employment. Further, we cannot subscribe to the petitioners contention that the due process requirement relative to the dismissal of respondent Javier was duly complied with when he was allowed to explain his side during the grievance machinery conferences. Indeed, in the case at bar, the petitioner did not conduct any investigation whatsoever prior to his termination, despite being informed of respondent Javiers predicament by the latters siblings, his Union and his counsel.28 The meetings held pursuant to the grievance machinery provisions of the collective bargaining agreement were only done after his dismissal had already taken effect on February 5, 1996. Clearly, well-meaning these conferences might be, they can not cure an otherwise unlawful termination. It bears stressing that for a dismissal to be validly effected, the twin requirements of due process notice and hearing must be observed. In dismissing an employee, an employer has the burden of proving that the former worker has been served two notices: (1) one to apprise him of the particular acts or omissions for which his dismissal is sought; and (2) the other to inform him of his employers decision to dismiss him. As to the requirement of a hearing, the essence of due process lies in an opportunity to be heard, and not always and indispensably in an actual hearing.29 Finally, in line with the rulings of this Court in Magtoto and Pedroso on the matter of backwages, respondent Javier is not entitled to any salary during the period of his detention. His entitlement to full backwages commenced from the time the petitioner refused his reinstatement. In the instant case, when respondent Javier was freed on May 24, 1996 by virtue of the judgment of acquittal dated May 17, 1996, he immediately proceeded to the petitioner but was not accepted back to work; hence, the reckoning point for the grant of backwages started therefrom. IN LIGHT OF ALL THE FOREGOING, the instant petition is hereby DISMISSED for lack of merit. The assailed Decision of the Court of Appeals is AFFIRMED WITH MODIFICATION. Petitioner is hereby ORDERED to reinstaterespondent Rogelio Javier to his former position or, if no longer possible, a substantially equivalent position without loss of seniority rights and other privileges appurtenant thereto, with full backwages from the time it refused to allow his reinstatement on May 24, 1996 until actually reinstated; or, if reinstatement is no longer feasible, to pay him separation pay equivalent to one (1) month salary for every year of service. Costs against the petitioner. Art. 148 Direct Assault 5) GR Nos. 136149-51 September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias WARPAN, appellant Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed no other crime. Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault. The Case Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September 17, 1998 Decision[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him. Filed against appellant were four Informations,[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information[3] was for maintaining a den for the use of regulated drugs. It reads as follows: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo,[4] this City, conspiring and confederating together,

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mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.[5] The second Information[6] charged appellant with illegal possession of firearms and ammunition. We quote it below: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law.[7] The third Information,[8] for multiple attempted murder with direct assault, was worded thus: That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has remained at-large.[9] In the fourth Information, appellant was charged with illegal possession of drugs.[10] On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently released from jail. The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not guilty.[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads: WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. WARPAN 1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a fine ofFIVE HUNDRED THOUSAND (P500,000.00) and to pay the costs; 2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs de oficio; 3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND (P30,000.00) and pay the costs; 4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with Multiple Attempted Homicide andSENTENCES said accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARSof prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original) Hence, this appeal.[12]

The Facts Prosecutions Version

In its Brief,[13] the Office of the Solicitor General presents the facts in this wise: At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside the office of the AntiVice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36). After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellants house, three (3) persons sitting at a nearby store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When

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the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16). SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the first group of policemen saw appellant fire an M14 rifle towards them.They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51). In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children. One of the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21). Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23). At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine.He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57). After Lacastesantos and Mirasol entered appellants house, Rivera, Dela Pea, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Pea and Rivera then searched appellants room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or shabu. Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32). Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and arrived at appellants house at 3:20 p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were six (6) persons already smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table. They asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of shabu he bought on the table (Ibid., pp. 8-15). While they were smoking shabu, Locson heard gunfire coming from appellants house. They all stood and entered appellants compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape because the police are already here. They scampered and ran away because there were already shots. Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19). The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired at appellants house [o]n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12). An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp. 16-21). With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L). The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of his residence (Exh. X)[14]

Defenses Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court.[15] Hence, we quote the pertinent parts of the assailed Decision:

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Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan, 30 years old, married, gave his occupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his alias. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandaos house and not in his house because they ha[d] a sort of a conference as Dandaos daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went out of the house and that was the time that he was arrested. He said he was arrested xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house (tsn, p. 7, id.). He does not know who arrested him considering that the one who arrested me does not have nameplate. He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said the policemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would] die [b]ecause the door is very near x x x the vicinity of my house. He does not own the M14 rifle (Exh. B-3) which according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. B-4), the three (3) empty M16 rifle magazines (Exh. G; G-1 to G-2), the two (2) M14 magazines with live ammunition (Exh. G-3; G-4); the two (2) caliber .38 revolvers (Exhs. B-1; B-2), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J-50) placed inside a pencil case (Exh. J, the assorted coins placed inside a blue bag (Exh. W) and the white crystalline stone (Exh. K) all do not belong to him. He said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: that is not ours, I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp. 15-24, id.) Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows for a fact that there are plenty of person who are engaged in selling shabu in that place, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id). After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998). During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw that it was the policeman who shot them[,] only I do not know his name. They were killed at the back of his house. He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998). Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls Hadji Id at the time the police raided the house.She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when soldiers entered the house. (W)hen they arrived, they kept on firing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said that it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken from Walpan Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [o]n the afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he was intending to bring to Sabah. He had around P50,000.00 placed inside a waist bag tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998). Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her parents lying together with her husband Sikkal Usma. There is only one house between her parents house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpans wife. When Melba heard shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998). Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and there was a shot. As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998). Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o clock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were already taken inside the house. When he went inside the house, he saw the things that they (policemen) searched, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were being listed. They were being counted and placed on a table. Upon seeing the things that were recovered during the search, I just signed the receipt (Exh. P; P-1) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18, id).[16]

The Trial Courts Ruling

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The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than one specific offense,[17] in violation of Section 3, Rule 126 of the Rules of Court.[18] The court a quo ruled: It should be stated at the outset that Search Warrant No. 20 is totally null and void because it was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant shall not issue but upon probable cause in connection with one specific offense xxx. In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a scatter shot warrant - violates Section 3, Rule 126 of the [R]evised Rules of Court and is totally null and void.[19] (emphasis in the original) Nevertheless, the trial court deemed appellants arrest as valid. It emphasized that he had shot at the officers who were trying to serve the void search warrant. This fact was established by the testimonies of several police officers,[20] who were participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and appellant.[21] Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid.[22] The trial court concluded that the testimonies of these officers must prevail over appellants narration that he was not in his house when the raid was conducted. Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus: Under the circumstances, the policemen had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. Under Rule 113, Section 5 (a), of the Rules of Court, A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who were about to serve the Search Warrant.[23] As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine containing seventeen live ammunition)[24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines.[25] The trial court observed that these items were in plain view of the pursuing police officers. Moreover, it added that these same items were evidence [of] the commission of a crime and/or contraband and therefore, subject to seizure[26] since appellant had not applied for a license to possess firearm and had not been given authority to carry firearm outside his residence.[27] For being incredible and unsupported by evidence, appellants claim that the items that were seized by the police officers had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an inherently weak defense.[28] The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows: The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that he did not maintain an extension house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpans testimony was not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by any other document showing that the extension house was in fact rented.The defense of denial put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is the weakest defense and cannot prevail over the positive and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, the former deserve more credence.[29] In conclusion, the trial court explained appellants liability in this manner: x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder. The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in plain view of the police officers who seized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the National Treasury.[30]

The Issues

In his Brief, appellant submits the following Assignment of Errors: I

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The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer. II The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where the house of the appellant [was] located. III The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.[31] In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.

The Courts Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court a better perspective and an idea with respect to the scene of the crime.[32] We do not agree. We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution witnesses.[33]We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairly good idea of appellants house.[34] Viewing the site of the raid would have only delayed the proceedings.[35] Moreover, the question whether to view the setting of a relevant event has long been recognized to be within the discretion of the trial judge.[36] Here, there is no reason to disturb the exercise of that discretion.[37]

Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses.[38] Suffice it to state that the trial courts assessment of their credibility is generally accorded respect, even finality.[39] After carefully examining the records and finding no material inconsistencies to support appellants claim, we cannot exempt this case from the general rule.[40] Quite the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.[41]testified thus: PROSECUTOR NUVAL: Q: And, this trail is towards the front of the house of the accused? A: Yes. Q: And its there where you were met by a volley of fire? A: Yes, Your Honor. COURT: Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon? A: More or less, five (5) meters. xxxxxxxxx PROSECUTOR NUVAL: Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform that question. Q: Who opened the gate Mr. Witness? A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut. Q: And, at that time you were hiding at the concrete fence? A: Yes. Q: Now, when this gate was opened, you said you went inside the house, right? A: Yes. Q: What did you see inside the house? A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman. xxxxxxxxx

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PROSECUTOR NUVAL: Q: Now, what did you do with these two old women? A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house. Q: Were you able to go to the second floor of the house? A: Yes. Q: What happened when you were already on the second floor? A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the neighbors house. xxxxxxxxx COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam. xxxxxxxxx PROSECUTOR NUVAL: Q: Were you able to go down? A: Yes. Q: What happened when you were there? A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.[42] What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,[43] as follows: Q: What did you notice [o]n the second floor? A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, do not fire at the second floor because there [are] a lot of children here. Q: Now, that rifle you said [was an] M14, where did you find this? A: At the sala set. Q: This sala set where is this located? A: Located [on] the second floor of the house. Q: Is there a sala [o]n the second floor? A: Yes. Q: Can you still identify that M14 rifle which you said you recovered from the sale set? A: Yes. Q: Why can you identify that? A: The Serial No. of M14 is 1555225 and I marked it with my initial. Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this? A: 1555225 and I put my initial, RJL. FISCAL NUVAL: This is already marked as our Exhibit B-3 with magazine, one magazine and seven round [ammunition]. Q: After recovering this, what did you do with this firearm? A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator. Q: Where did you turn it over? A: At the crime scene. Q: Now, that magazine, can you still identify this? A: Yes. Q: Why? A: I put x x x markings. xxxxxxxxx COURT: So, a[si]de from the magazine attached to the M14 rifle you found six more magazines? A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.

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Q: The M16 magazines [were] empty? A: Empty. Q: How about the M14? A: Found with [ammunition]. xxxxxxxxx Q: So, where are the three M16 magazines? A: In the corner. Q: What did you do with [these] three magazines of M16? A: I turned [them] over to the investigator. Q: Can you identify them? A: Yes, because of my initials[.] Q: Where are your initials? A: On the magazines. Q: RJL? A: RJL.[44] These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court: Q: Okay. Now, what was the result of your examination, Madam Witness? A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates. Q: What do you mean Madam Witness, what does that indicate? A: It indicates there is presence of powder nitrates. Q: Can we conclude that he fired a gun? A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates. Q: But, most likely, he fired a gun? A: Yes. xxxxxxxxx PROSECUTOR NUVAL: Q: What about, Madam Witness this Exhibit B-3, which is the M14 rifle. What did you do with this? A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel. Q: And, that indicates Madam Witness...? A: It indicates that the gun was fired. Q: Recently? A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x. COURT: Q: There is also black residue? A: Yes. Q: What does it indicate? A: It indicates that the firearm was recently fired. Q: And, where is this swab used at the time of the swabbing of this Exhibit? A: This one. PROSECUTOR NUVAL: May we ask that this be marked as Exhibit B-3-A. COURT: Q: The firing there indicates that the gun was recently fired, during the incident? A: Yes. Q: And also before the incident it was fired because of the brown residue? A: Yes, Your Honor.[45] (emphasis supplied)

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Duly proven from the foregoing were the two elements[46] of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecutions Certification[47] stating that he had not filed any application for license to possess a firearm, and that he had not been given authority to carry any outside his residence.[48] Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual.[49]

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He claims that the items seized from his house were planted, and that the entire Zamboanga police force was out to get him at all cost. This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult to disprove.[50]Absent any showing of an improper motive on the part of the police officers,[51] coupled with the presumption of regularity in the performance of their duty, such defense cannot be given much credence.[52] Indeed, after examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his statements in his Counter Affidavit are inconsistent with his testimony during the trial.[53] He testified thus: Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit? A I could not remember. Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature is this appearing above the typewritten name FISCAL NUVAL: Q . . . . Walpan Ladjaalam, whose signature is this? (Showing) A Yes, Sir. This is mine. Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: that I was resting and sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house; [the] house you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots? A Our house. Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct? A They were not there. Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you were in your neighbors[] house at that time when you heard gunshots? A I was in the house near my house. Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct? A Yes, Sir. This is not correct.[54]

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentenced toreclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The formers testimony was corroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and its extension lent credence to the prosecutions story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault[55] with multiple counts of attempted homicide. It found that [t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x x x constituted such complex crime.[56] We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum periods, while attempted homicide carries the penalty of prision correccional.[57] Hence, for the present complex crime, the penalty for direct assault, which constitutes the most serious crime, should be imposed and applied in its maximum period.[58]

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Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor. The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294. The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three:Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Citing People v. Jayson,[59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be deemed as an aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is committed at the same time.[60] Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not have been ignorant of theproviso[61] in the second paragraph, it seemed to have construed no other crime as referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms. We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense.Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused.[62] In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused.[63] Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance. We reject the OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July 6, 1997.[64] In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jayson[65] is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that the criminal case for homicide [was] not before us for consideration. Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense,[66] like alarm and scandal[67] or slight physical injuries,[68] both of which are punishable by arresto menor.[69] This consequence, however, necessarily arises from the language of RA

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8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence[70] to the proven facts, and we have done so in this case. WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion perpetua. Costs against appellant. Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294.

6) G.R. No. 129069

October 17, 2001

PEOPLE OF THE PHILIPPINES, appellee, vs. JULIO RECTO y ROBEA, appellant. Treachery cannot be appreciated to qualify a killing to murder, if the accused has not deliberately sought to attack the vulnerability of the victim. In the present case, the latter evidently had the opportunity to escape or to defend himself, but chose not to grab the opportunity; instead, he placed himself in a position more open to attack. The Case For automatic review by this Court is the Decision1 dated April 2, 1997, promulgated by the Regional Trial Court (RTC) of Romblon (Branch 81), which found Julio Recto y Robea guilty beyond reasonable doubt of (1) two counts of the complex crime of qualified direct assault with frustrated homicide (Criminal Case Nos. 1970 and 1971), (2) the complex crime of qualified direct assault with murder (Criminal Case No. 1972), and (3) homicide (Criminal Case No. 1973). The decretal portion of the RTC Decision reads follows: "WHEREFORE, in Criminal Case No. 1970, this Court finds accused JULIO RECTO GUILTY beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, with the accessory penalties of the law, and to pay the costs. "In Criminal Case No. 1971, this Court finds accused JULIO RECTO GUILTY beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, with the accessory penalties of the law, and to pay the costs. "In Criminal Case No. 1972, this Court finds co-accused JULIO RECTO GUILTY beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [m]urder and hereby sentences him to suffer the supreme penalty of DEATH. He is ordered to pay the heirs of the victim ANTONIO MACALIPAY the sum of P50,000.00 as indemnity for his death, without subsidiary imprisonment in case of insolvency, and to pay the costs. xxx xxx xxx

"In Criminal Case No. 1973, this Court finds co-accused JULIO RECTO GUILTY beyond reasonable doubt of the crime of [h]omicide and hereby sentences him to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days ofreclusion temporal, as maximum, with the accessory penalties of the law, and he is ordered to pay the heirs of the victim EMILIANO 'RENATO' SANTOS, alias REY, the sum of P50,000.00 as indemnity for his death. without subsidiary imprisonment in case of insolvency, and to pay the costs. xxx xxx xxx

"The 'pugakang' or homemade shotgun with one (1) live ammunition (Exh. C); twelve (12) gauge live ammunition (Exh. C-1); the revolver together with the three (3) live bullets and two (2) empty shells (Exhs. D, D-1 to D-5, respectively) are confiscated in favor of the government. "After the judgment shall have become final, the [o]fficer-in-[c]harge, Office of the Clerk of Court, this Court, is ordered to deliver and deposit all the foregoing exhibits to the [p]rovincial [d]irector, PNP, of the Province of Romblon properly receipted. Thereafter, the receipt must be attached to any of the records of these cases and shall form part of these records. "The period of preventive imprisonment both accused had undergone shall be credited in their favor to its full extent and the penalties herein imposed shall be served successively in accordance with Articles 29 and 70, respectively, of the Revised Penal Code, as amended."2 On September 22, 1994, four (4) Informations,3 all signed by State Prosecutor II Felix R. Rocero, were filed against appellant. The fifth Information was dated October 18, 1994. The Informations in Criminal Case Nos. 1970 and 1971 charged appellant with direct assault with frustrated murder, as follows: Criminal Case No. 1970 "That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called 'pugakang' one MELCHOR RECTO, knowing that the latter is a duly appointed [b]arangay [c]hief [t]anod of Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties, inflicting upon the latter gunshot wounds in different parts of his body, thus performing all the acts of execution which should produce the felony of murder as a consequence, but nevertheless, did not produce it by reason of causes independent of the will of the accused and that is by the timely and able medical assistance rendered to the victim which prevented his death."4

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Criminal Case No. 1971 "That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called 'pugakang' one Barangay Captain PERCIVAL ORBE, knowing that the latter is a duly elected barangay captain of Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties, inflicting upon the latter gunshot wounds in different parts of his body, thus performing all the acts of execution which should produce the felony of murder as a consequence, but nevertheless, did not produce it by reason of causes independent of the will of the accused and that is by the timely and able medical assistance rendered to the victim which prevented his death."5 The Information6 in Criminal Case No. 1972, which charged appellant with direct assault with murder, was worded thus: "That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this [H]onorable Court, the said accused with intent to kill, conspiring, confederating and mutually helping each other, did then and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault and shoot with a shotgun locally called 'pugakang' and strike with a long bolo, one ANTONIO MACALIPAY, knowing that the latter is a duly elected [b]arangay [k]agawad of Ambulong, Magdiwang, Romblon, while he was engaged in the performance of his official duties, inflicting upon the latter mortal wounds in different parts of his body which were the cause of his untimely death."7 In the Information8 in Criminal Case No. 1973, appellant was charged with murder, as indicated hereunder: "That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon. Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault and shoot with a shotgun locally called 'pugakang' and strike with a long bolo, one EMILIANO 'RENATO' SANTOS9 , alias EMY, inflicting upon the latter mortal injuries in different parts of his body which were the direct and immediate cause of his death."10 Finally, appellant was charged with illegal possession of firearm and ammunition in the Information in Criminal Case No. 1975, which we quote: "That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there wilfully, unlawfully and feloniously have in his possession and under his custody and control, one (1) handgun locally called 'pugakang' with one live ammunition, which he used in killing Barangay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos and [which was] confiscated by the police authorities."11 When arraigned on all the five charges on November 24, 1994, appellant, with the assistance of his counsel,12pleaded "not guilty."13 In due course, he was tried and, thereafter, sentenced. The Version of the Prosecution The Office of Solicitor General summarized the evidence for the prosecution in this wise:14 "In the early afternoon of April 18, 1994 at Ambulong, Magdiwang, Sibuyan Island, Romblon, Barangay Captain Percival Orbe was in his residence together with Barangay Kagawad Antonio Macalipay and Barangay Tanod Melchor Recto, appellant's cousin. They were trying to settle a land dispute involving Linda Rance and Cornelio Regis, Jr. While the meeting was in progress, Orbe was summoned by SPO4 Fortunato Rafol to proceed to the bodega of Rance. "There, they noticed that the padlock of the bodega was destroyed, and the palay stored therein, stolen. Forthwith, Barangay Kagawad Macalipay, who happened to be the chairman of the Barangay Agrarian Reform Committee (BARC), conducted an investigation. "SPO4 Rafol and SPO1 Male, also made their investigation and reported their findings to Linda Rance. At this point, Barangay Tanod Melchor Recto passed by. He saw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito and Linda Rance at the bodega. He went to Barangay Captain Orbe and inquired why they were there. Barangay Captain Orbe told him that the padlock of the bodega was destroyed and the palay, stolen. Orbe requested Melchor Recto to stay as he might be needed. Thereupon, Barangay Tanod Melchor Recto began his own ocular investigation. "While SPO4 Rafol and SPO1 Male were leaving the premises, the group of [A]ppellant Julio Recto, Cornelio Regis, Jr., Dante Regis, Melvar Relox, Teodoro de la Serna, Enrica Regis and Nida Regis arrived. The group stopped at the first 'trampa' near the bodega. Barangay Captain Orbe advised them not to create trouble, but, Dante Regis pulled a piece of wood and threw it towards them. Thereafter, [A]ppellant Recto, while holding a balisong or fan knife, approached Barangay Captain Orbe. The latter responded by telling the former to surrender the balisong. Appellant stepped backward, opened his jacket and pulled out a gun, a de sabog. Upon seeing the gun, Barangay Captain Orbe retreated, while Barangay Kagawad Antonio Macalipay stepped forward with both arms raised and uttered the words: 'Do not do it. We'll just settle this. (Ayoson ta lang ine).' Julio Recto, however, immediately pulled the trigger, hitting Barangay Kagawad Macalipay, causing him to fall down on the ground. Then Cornelio Regis, Jr. approached the fallen Macalipay and flipped his bolo at the latter who rolled and fell into the rice paddy. "Melchor Recto saw the shooting from his hiding place behind a concrete pillar. He then ran inside the old dilapidated bathroom of the bodega. Barangay Captain Orbe also followed. Inside the bathroom, Melchor Recto peeped through the window and saw [A]ppellant Recto fire his gun at Emilio Santos. Santos also fired his revolver at appellant and later, turned around and crawled. While crawling, Santos fired another shot towards Regis, Jr[.], but, the latter was able to reach and hack the former with a bolo. "Amidst the din, Percival Orbe and Melchor Recto heard [A]ppellant Julio Recto saying: 'Where is thatkapitan?' When Melchor could no longer see Julio Recto, he jumped out of the bathroom window and ran. While running, Julio Recto shot him hitting the latter's thigh. Barangay Captain Orbe also got out of the bathroom through the top and landed [o]nto the ricefield. Before he could take a step, he was also shot by [A]ppellant Julio Recto at his right elbow, but was still able to continue running and cross the southern portion of the ricefield. He caught up with the wounded Melchor Recto and both went their separate ways. On the other hand, both Barangay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos died due to multiple wounds inflicted on them by herein appellant." (citations omitted) Facts

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Version of the Defense On the other hand, the trial court presented appellant's version of the incident, as follows:15 "x x x Julio Recto interposed self-defense and defense of his co-accused Cornelio Regis, Jr. . . . According to co-accused Julio Recto they were berated at about 12 meters away from the bodega and it was there that the late Emiliano Santos shot co-accused Cornelio Regis, Jr. and he was hit and he (Julio) retreated two (2) steps backward. Then, he took two (2) steps forward and said why are you like that. Alberto Rance, the son of Mrs. Linda Rance, shot him, hitting him on his left side. He ran towards Alberto Rance who shot him with the latter behind the concrete porch holding his gun with his two (2) hands resting on the concrete wall (porch) of the bodega, and with Emiliano Santos also holding his gun [which] he used in shooting Regis, Jr. The distance between Alberto Rance and the unarmed Julio Recto was 11 meters when x x x Julio Recto r[a]n towards Alberto Rance[;] the latter ran and he saw Wilfredo Arce [turn] and [pick] up a gun and he grabbed the gun and while pulling it, it fired and he did not know whether it hit somebody. Emiliano Santos incredibly was no longer there to shoot him. However, Julio Recto was able to take possession of this gun from Wilfredo Arce, took cover behind a post and still managed to shoot Santos who was somewhere else. He threw the gun later on the disputed land and ran to the direction of the banana plantation of Regis, Jr. and he reached his house. Both of them were outside the house of Regis, Jr. x x x when [M]aritime [P]oliceman Morada and Galin arrived. x x x" (citations omitted, underscoring in original) Ruling of the Trial Court The trial court found that appellant had fired at a barangay tanod, Melchor Recto, who was at the crime scene "on the occasion of the performance of his official duties."16 It added that appellant had shot a barangay captain, Percival Orbe, also "on the occasion of the performance of his official duties."17 The lower court ruled out treachery in the killing of Emiliano Santos, because there had been a gun duel between him and appellant. However, it convicted and sentenced appellant to death for the murder of Antonio Macalipay. Because of the trial court's imposition of the death penalty, this review by the Supreme Court is mandatory and automatic, without need of a notice of appeal.18 Assignment of Errors In his Brief, appellant faults the court a quo with the following alleged errors:19 I "The lower court erred in finding the accused-appellant guilty of direct assault in Criminal Case Nos. 1970 and 1972 which accordingly resulted in his being convicted of complex crimes in those cases. II "The lower court erred in finding the presence of the qualifying circumstance of treachery in Criminal Case No. 1972 which accordingly resulted in his being convicted of murder in that case." In the interest of justice and despite appellant's anemic Brief, we deem it wise to review the entire assailed Decision, particularly the crimes imputed and the penalties imposed by the trial court. The Court's Ruling The Decision of the trial court should be MODIFIED. Self-Defense and Defense of a Relative Appellant contends that he committed the crimes attributed to him in self-defense and in defense of his uncle, Cornelio Regis Jr. By invoking self-defense and defense of a relative, appellant plainly admits that he killed Antonio Macalipay and Emiliano "Renato" Santos and fired the shots that injured Melchor Recto and Percival Orbe. Thus, appellant has shifted the burden of evidence to himself. Consequently, to escape criminal liability, he must prove, by clear and convincing evidence, the existence of the essential requisites of self-defense; namely, (1) unlawful aggression on the part of the victim, (2) reasonable necessity of the means employed to prevent or repel it, and (3) lack of sufficient provocation on the part of the person resorting to self-defense.20 For defense of a relative21 to prosper, appellant must prove the concurrence of the first and the second requisites of self-defense and "the further requisite, in case the provocation was given by the person attacked, that the one making the defense had no part therein."22 Appellant miserably failed to discharge this burden. In fact, he was clearly the aggressor. Without unlawful aggression on the part of the victim, there can be no viable self-defense or defense of a relative.23 "There is unlawful aggression when the peril to one's life, limb or right is either actual or imminent. There must be actual force or actual use of weapon."24 In this case, Antonio Macalipay was unarmed and actually trying to pacify appellant when the latter shot him. After shooting Antonio, appellant again cocked his gun, pointed it at Emiliano Santos and shot him. The latter's act of drawing his gun and firing at him was merely selfdefense. As for Melchor Recto and Percival Orbe, no aggression ever emanated from them during the entire incident. They were unarmed and in fact already running away from appellant when he shot them. Clearly, there was no unlawful aggression from any of the victims. For purposes of clarity and simplicity, we deem it wise to discuss separately the crimes attributed to appellant and the proper penalties imposed by the trial court. Crime and Punishment

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The trial court convicted appellant of four (4) crimes: two counts of the complex crime of qualified direct assault with frustrated homicide, one count of the complex crime of qualified direct assault with murder, and one count of homicide. We will now discuss each of these crimes. Qualified Direct Assault with Frustrated Homicide (Criminal Case Nos. 1970 and 1971) In these two cases, appellant claims that he "did not mind" the two victims because they were not his enemies. He, however, testified that the de sabog gun had merely misfired and hit them. The court a quo was correct in not giving credence to his attempt to paint the victim's injuries as the result of an accident. Evidence to be believed must be credible in itself.25 His weak and incredible testimony cannot prevail over the positive and categorical testimonies of the prosecution witnesses stating that he deliberately shot them. However, the trial court erred in convicting appellant of qualified direct assault with frustrated homicide. Direct assault, a crime against public order, may be committed in two ways: first, by "any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;" and second, by any person or persons who, without a public uprising, "shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance."26 The first mode is tantamount to rebellion or sedition, without the element of public uprising. The second mode, on the other hand, is the more common form of assault, and is aggravated when: (a) the assault is committed with a weapon, or (b) when the offender is a public officer or employee, or (c) when the offender lays a hand upon a person in authority.27 An agent of a person in authority is "any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as barrio councilman, barrio policeman and barangay leader, and any person who comes to the aid of persons in authority."28 In the case at bar, the victim, Melchor Recto29 being then the barangay chief tanodof Ambulong, Magdiwang, Romblon was clearly an agent of a person in authority. However, contrary to the findings of the trial court, he was not "engaged in the performance of his official duties" at the time he was shot. Neither was he attacked "on the occasion of such performance," as we will now show. It must be emphasized that Melchor Recto was on his way home when he happened to pass by the bodega of the Rance couple. He testified as follows: "PROSECUTOR MORTEL: Q: On April 18, 1994 at around 4:00 o'clock in the afternoon, you said you were in the ricefield gathering the harvested palay[;] what time did you leave that place? A: Q: Nearing 5:00 o'clock already. And in going to your house, do you remember if you ha[d] to pass by the bodega of Rance?

ATTY. MONTOJO: Leading, Your Honor. COURT: Leading. PROSECUTOR MORTEL continuing: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Now, did you go to your house that afternoon? No, sir. Why? Because when I pass[ed] in the bodega there were plenty of people. Whose bodega are you referring to? Rance. Do you know the name of the owner? Yes, sir. Please give us the name? First owned by Jose Rance now owned by Crestito and Linda Rance. What relation has this Crestito Rance to Jose Rance? Jose is the father of Crestito Rance.

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Q: A: And this Linda, what relation has she with Crestito Rance? Wife.

Q: You said, that when you passed by the bodega on your way to your house there were people in that bodega, please give us [the] names of the people thereat whom you know? A: SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain Percival Orbe, Kag. Antonio Macalipay, Wilfredo Arce and Spouses Crestito and Linda Rance and those who were threshing palay thereat."30 Melchor explained that when appellant's group arrived, it was Barangay Captain Percival Orbe and Kagawad Antonio Macalipay who talked to the group. Melchor did not do anything to avert the tension. He only watched what was transpiring and later hid himself when the first shot was fired. He continued: "PROSECUTOR MORTEL continuing: Q: Because of that, what did Orbe tell you as a barangay tanod?

ATTY. MONTOJO: Leading, Your Honor. COURT: Leading. PROSECUTOR MORTEL continuing: Q: A: Q: A: Q: A: xxx Q: A: Q: A: Q: A: Q: What else did he say? He told me not to leave because he might need me. And did you remain? Yes, sir. As you were there, did you observe what [t]he policemen were doing? I observed [them] going there and through around [sic] the bodega. xxx xxx

Now later on, do you remember what the policemen did? I observed that the policemen were already passing the rice paddies towards the road. And after they were gone . . . . By the way, who were these policemen whom you observed going towards the road, will you please name them? SPO4 Fortunato Rafol and Male. Do you know the first name of SPO1 Male? No sir. Now, after they were gone, do you remember if there were persons who arrived?

ATTY. MONTOJO: Misleading COURT: Leading. PROSECUTOR MORTEL (continuing): Q: After they were gone, what happened?

A: I saw Cornelio Regis, Jr., Julio Recto, Melver Relox, Dante Regis, Teodoro dela Serna, Nida Regis, Enrica Regis. I saw these seven (7) passing through the rice paddies towards the bodega. xxx xxx xxx

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PROSECUTOR MORTEL continuing: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: Were these group of people able to reach the bodega? No, sir. Why? They stopped on the first trampa that they reached. And upon reaching that place, what happened? Dante Regis thr[e]w a piece of wood. Going to what direction? Towards the bodega. And when Dante Regis thr[e]w that piece of wood towards the direction of the bodega, what happened? The barangay captain, Percival Orbe, approached them and told them not to do it. And what did you observe . . . . By the way, who was that barangay captain? Orbe. And what did you observe when [B]arangay [C]aptain Orbe [told] them not to do it? I observed that the group got angry so Percival Orbe retreated. And when Percival Orbe approached the group, did he have any companion? Yes, sir. Who? Kagawad Antonio Macalipay. And when Percival Orbe retreated, what did Antonio Macalipay do?

A: When the barangay captain retreated, Antonio Macalipay proceeded towards the group and stop[ped] at the second trampa coming from the bodega. Q: A: Now, when you reached that place of the second trampa, what happened? Julio Recto raised his jacket and pulled out a gun and pointed it to Antonio Macalipay.

INTERPRETER: Witness standing and demonstrating. PROSECUTOR MORTEL continuing: Q: A: And when the gun was pointed to Kagawad Antonio Macalipay, what did Antonio Macalipay do? He raised both hands.

INTERPRETER: Witness demonstrating by raising his two (2) arms up with open palms as if in surrender, and said ['D]o not do it we will just settle this.['] PROSECUTOR MORTEL continuing: Q: A: Q: A: And after Macalipay had said that, what happened? Julio Recto shot him. And what happened to Macalipay after being shot? Antonio Macalipay fell down backward.

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INTERPRETER: Witness demonstrating . . . fall[ing] backward. PROSECUTOR MORTEL continuing: Q: A: xxx Q: A: And when you saw Antonio Macalipay fall down backward, what did you do? I hid behind a pil[l]ar? xxx xxx

After hiding behind the pil[l]r, what did you do? I ran towards an old broken down bathroom. . . . "31

Thinking that appellant had already left the bodega, Melchor, while hiding inside the old bathroom for several minutes, decided to jump out of a broken down window32 and ran towards the national road.33 Clearly, from his arrival at the scene of the crime to his departure therefrom, Melchor was not engaged in the performance of his official duties. Neither was he attacked on the occasion thereof. This fact was corroborated further by the testimony of Linda Rance, who said that it was Orbe and Macalipay who had pacified appellant and his six companions. She testified thus: "PROSECUTOR VICTORIANO continuing: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: While they were discussing, what happened? When they were discussing, Dante Regis thr[e]w a piece of wood. To what direction was that piece of wood thr[own] by Dante Regis? Going towards our group. And how is this Dante Regis related to Cornelio Regis Jr.? He is the son of Cornelio Regis, Jr. When that piece of wood was thrown towards your direction, was somebody hit? No, sir. Where did that piece of wood land? In front of our bodega. Was there anything hit by that piece of wood? No, sir. When that piece of wood was thrown, what followed next? They were already agitated. Now, because of the agitation, what happened? Bgy. Captain Orbe was trying to pacify them. What about Bgy. Kagawad Antonio Macalipay, what did he do? He was trying to pacify but they would not be pacified. Now, when they refused to be pacified, what did Julio Recto do? Julio Recto turned his way (witness turning to her left side) and open[ed] his jacket and drew a gun. When Julio Recto drew his gun, what did Antonio Macalipay do?

A: Antonio Macalipay said, ["L]et us settle this (witness raising . . . both [of her] hands) and do not do it. (at the same time raising . . . both [of her] hands as if in surrender[)"].

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INTERPRETER: Witness demonstrating. PROSECUTOR VICTORIANO continuing: Q: A: Now, [in] spite of what Barangay Kagawad Antonio Macalipay did, what happened? Julio Recto shot him once."34

Unquestionably, Melchor Recto was a barangay chief tanod; however, at the crime scene he was a mere bystander. Apparently, he was not acting and had no occasion to act in the performance of his official duties that afternoon. Thus, the attack on him did not amount to direct assault.35 We now determine the criminal liability of appellant with respect to the attack. He shot Melchor only once, but the latter sustained five gunshot entry wounds36 all located at his backside, at the vicinity of his buttocks. Because the gun used by the former was a de sabog,37 each bullet contained several pellets inside.38 In other words, a single shot from a de sabog results in the spewing of several pellets. The nature of the weapon used for the attack and the direction at which it was aimed the victim's back unmistakably showed appellant's intent to kill. However, for reasons other than his own desistance, appellant was not able to perform all the acts of execution necessary to consummate the killing, since the wounds he inflicted were not mortal. In United States v. Eduave,39this Court has held that if the wounds would not normally cause death, then the last act necessary to produce homicide has not been performed by the offender. Thus, appellant's liability amounted only to attempted, not frustrated, homicide. The penalty that is lower by two degrees40 than that prescribed by law for consummated homicide shall be imposed upon appellant. After applying the Indeterminate Sentence Law, it shall be taken from the medium period, since there were no aggravating or mitigating circumstances proven. In Criminal Case No. 1971, the trial court was correct in ruling that the attack on Percival Orbe then a barangay captain, a person in authority41 amounted to qualified direct assault, because he was attacked on the occasion of the performance of his duty. At the time, he was attempting to pacify appellant and to keep the peace between the two groups. A felony "is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." In this case, the nature of the weapon used by appellant unmistakably shows that he intended to kill Orbe. However, like the wounds inflicted by the accused on Melchor Recto, those on Orbe were not fatal. As evidenced by the Medico-Legal Certificate42 prepared by Dr. Ramon D. Villanueva of the Romblon Provincial Hospital and the testimony given by Dr. Giovannie C. Fondevilla of the same hospital, Orbe sustained several gunshot wounds in the vicinity of his right elbow. Those injuries could not have caused his death. Moreover, according to Dr. Fondevilla, no surgical intervention was required; only medication was given to him43 to prevent any secondary infection from setting in.44 Evidently, appellant had not yet been able to perform all the acts of execution necessary to bring about the death of Orbe, because the latter was able to run away after being fired at. Although appellant had already directly commenced the commission of a felony by overt acts (shooting Orbe with a de sabog), he was not able to consummate that felony for some reason other than his spontaneous desistance. Thus, he committed attemptedhomicide. Given these circumstances, appellant should therefore be convicted of the complex crime of qualified direct assault with attempted homicide. To be imposed therefor should be the penalty for the most serious crime in this case qualified direct assault the same to be imposed in its maximum period.45 The Indeterminate Sentence Law should also be applied in this case. Qualified Direct Assault with Murder (Criminal Case No. 1972) In Criminal Case No. 1972, appellant does not question the finding of the trial court that he shot Antonio Macalipay. However, he submits that it erred in finding the presence of the qualifying circumstance of treachery. We agree. First, the victim's companions outnumbered those of appellant. As shown by the pleadings and records of the case, his group consisted of seven individuals; the victims, sixteen.46 Second, the heated confrontation on April 18, 1994 arose as a consequence of an earlier judgment47 of the trial court in favor of appellant's group. This case strained the relations of the parties who, after all, were related by blood and marriage. In fact, prior to this event, appellant believing that his uncle Cornelio Regis Jr. should get the landlord's share of the palay or rice harvest attempted to harvest the fields thrice: (1) in October 1993; (2) in December 1993; and, (3) in March 1994.48 All of these attempts failed, because Linda Rance hired a group of bodyguards headed by the victim, Emiliano "Renato" Santos.49 In short, the confrontation was not totally unexpected. Third, both groups were armed. The exchange of gunfire was substantiated by the Medico-legal Certificates presented by both the prosecution and the defense.50 Moreover, the deceased Santos carried a gun which Alberto Rance, son of Crestito and Linda, had given him for his protection.51 Fourth, appellant's group asked the police station commander to assemble the workers of the disputed rice field on April 15, 1994 at the Municipal Building of Magdiwang, Romblon, to inform them of the trial court's Decision awarding the land to Cornelio Regis Jr. For this reason, the members of the group were to start collecting the landlord's share starting April 18, 1994.52 Fifth, appellant was seen holding a balisong or fan knife during the heated confrontation, before he pulled out the shutgun and pointed it at the other group.53 Macalipay, in a bold yet foolish attempt, stepped forward in front of appellant and told him: "Ayosan ta lang ini?54 (No, don't, because we will just settle this)."55 And "[s]imultaneously with the last word in the phrase [']don't because we will just settle this, [']"56 appellant fired his gun, killing the victim.

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Evidently, the victim had all the opportunity to escape or defend himself from the aggression that was to ensue, yet chose not to grab the opportunity and instead placed himself in a position more open to attack.57 Equally important, his vulnerable position had not been deliberately sought by appellant. It was thrust on the latter by the former himself. In short, appellant did not deliberately choose the mode of attack to kill the victim with impunity and without risk to himself. Jurisprudence teaches us: "Treachery does not exist [when] the evidence does not show that appellant deliberately adopted a mode of attack intended to ensure the killing of [the victim] with impunity, and without giving the victim an opportunity to defend himself. Further, the shooting took place after a heated exchange of words and a series of events that forewarned the victim of aggression from appellant. In this case, it appears to have occurred on sudden impulse but preceded by acts of appellant showing hostility and a heated temper that indicated an imminent attack and put the deceased on guard.58 "If the decision to kill was sudden, there is no treachery, even if the position of the victim was vulnerable, because it was not deliberately sought by the accused, but was purely accidental.59 "When there is no evidence that the accused has, prior to the moment of the killing, resolved to commit the crime, or there is no proof that the death of the victim was the result of meditation, calculation or reflection, treachery cannot be considered."60 Section 16 of Article 14 of the Revised Penal Code states that "there is treachery when the offender commits any of crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make." In this case, appellant was out in the open during the entire span of time from the heated discussion, to the brewing of the violence, and up to the shooting of Macalipay. At the time, his every action, which indicated the imminence of more violence, was visible to them to the victim and the latter's companions. Appellant was actually vulnerable to any attack that they could have made at the time, had they chosen to. His mode of attack was therefore not without risk to himself. Absent treachery, the killing is homicide, not murder. Considering that Antonio Macalipay was a kagawad who was in the actual performance of his duties when he was shot, the attack on him constituted direct assault. Applying the provisions of Articles 148 (direct assault), 249 (homicide) and 48 (penalty for complex crimes), appellant should be held liable for the complex crime of qualified direct assault with homicide. The penalty to be imposed on him should be for homicide, which is the more serious crime, to be imposed in the maximum period. This penalty shall comprise the maximum of his indeterminate sentence, and the minimum shall be within the range of the penalty next lower than that prescribed for homicide. Homicide (Criminal Case No. 1973) We sustain appellant's conviction for homicide in Criminal Case No. 1973 because, in the words of the trial judge: "The late Emiliano Santos was only beaten to the draw by co-accused Julio Recto). It was a gun duel between the two."61 In his Brief, appellant hardly disputed this holding. Neither do we. The maximum of the penalty imposed by the court a quo in this case was, however, taken from the minimum period of the penalty for homicide. Considering that no mitigating or aggravating circumstances were proven, the maximum of the indeterminate sentence in this case should be taken from the medium period. WHEREFORE, the Decision dated April 2, 1997, issued by the Regional Trial Court of Romblon, is hereby MODIFIED as follows: First, in Criminal Case No. 1970, appellant is hereby CONVICTED of attempted homicide and sentenced to suffer imprisonment for an indeterminate penalty of four (4) months of arresto mayor as minimum, to four (4) years and two (2) months of prision correccional as maximum. Second, in Criminal Case No. 1971, appellant is hereby CONVICTED of the complex crime of qualified direct assault with attempted homicide and is hereby sentenced to suffer an indeterminate penalty, of six (6) months ofarresto mayor as minimum, to six (6) years of prision correctional as maximum. Third, in Criminal Case No. 1972, appellant is hereby CONVICTED of qualified direct assault with homicide aggravated by the use of a weapon and is sentenced to suffer an indeterminate penalty of twelve (12) years ofprision mayor as minimum, to twenty (20) years of reclusion temporal as maximum. We AFFIRM the award of P50,000 as indemnity ex delicto. Fourth, in Criminal Case No. 1973, the trial court's judgment convicting appellant of homicide and awarding to the victim's heirs an indemnity ex delicto of P50,000 is AFFIRMED; but the maximum of the penalty imposed is increased to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. All other portions of the trial court's disposition that were not modified in the above pronouncement are deemed AFFIRMED. No pronouncement as to costs. 7) G.R. No. 138553 June 30, 2005

ENRIQUE "TOTOY" RIVERA Y DE GUZMAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Assailed and sought to be set aside in this petition for review on certiorari are the October 16, 1998 decision1 and April 5, 1999 resolution2 of the Court of Appeals in CA-G.R. CR No. 17284, which respectively affirmed in toto an earlier decision of the Regional Trial Court of La Trinidad, Benguet convicting herein petitioner Enrique "Totoy" Rivera of the crime of direct assault, and denied petitioners motion for reconsideration. On May 6, 1993, in the Regional Trial Court at La Trinidad, Benguet an information3 for direct assault was filed against petitioner, allegedly committed, as follows:

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That on or about the 20th day of March, 1993, at Tomay, Shilan, Municipality of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously attack, employ force and seriously resist one Lt. EDWARD M. LEYGO, knowing him to be a policeman, by then and there challenging the latter to a fistfight and thereafter grappling and hitting the said policeman on his face, thus injuring him in the process while the latter was actually engaged in the performance of his official duties. Contrary to law. On arraignment, petitioner entered a plea of "Not Guilty." Thereafter, trial ensued. To prove its case, the prosecution presented in evidence the testimonies of the victim himself, Lt. Edward Leygo, and the two alleged eyewitnesses to the incident, SPO1 Jose Bangcado and Brenda Dup-et. For its part, the defense presented the petitioner himself and one Alfredo Castro. As summarized by the trial court and adopted by the Court of Appeals in the decision herein assailed, the Peoples version4 is, as follows: On March 20, 1993 at around 8:00 oclock in the evening, Police Inspector Edward M. Leygo, Deputy Chief of Police for Operation and Patrol of the La Trinidad Police Station, La Trinidad, Benguet and SPO1 Joseph Basquial were conducting routinary patrol on board a police car somewhere in Shilan, La Trinidad, Benguet when they came upon a truck unloading sacks of chicken dung at the stall of accused Enrique "Totoy" Rivera which was located along the Halsema Highway at Shilan, La Trinidad, Benguet. Inspector Leygo advised the driver to stop unloading the manure as it violates La Trinidad Municipal Ordinance No. I-91 (Exhibit "C") which prohibits, among others, the loading and unloading of chicken manure along the sidewalks or road shoulders or within 15 meters from the center of the Halsema Highway located at La Trinidad, Benguet. The driver complied with the police directive. The policemen then escorted the truck back to Poblacion, La Trinidad, Benguet and proceeded to the police headquarters. Not long after, SPOI Jose Bangcado and SPOI Rivera Dayap, members of the La Trinidad Police under Inspector Leygo were conducting patrol aboard a police car somewhere at Km. 6, La Trinidad, Benguet when they observed a truck loaded with chicken dung proceeding towards Shilan, La Trinidad, Benguet. Having in mind the instructions of La Trinidad Mayor Edna C. Tabanda and their Commanding Officer Inspector Leygo to Implement Ordinance No. I-91, the two policemen followed and stopped the truck at Cruz, La Trinidad, Benguet. Immediately they called Inspector Leygo on the radio and informed him that they stopped a truck carrying chicken dung. Inspector Leygo ordered them to restrain the truck, as he would be proceeding to the area. Knowing that the truck being restrained by the two policemen was the same truck which they had escorted earlier from Shilan, La Trinidad, Benguet, Inspector Leygo felt ignored and insulted. He immediately called SPO4 Justino Tiwtiwa, SPO1 Baldwin Ngolab and SPO1 Joseph Basquial and the group sped to Cruz, La Trinidad, Benguet. Meanwhile, back at Cruz, La Trinidad, Benguet, the accused arrived before the group of Inspector Leygo did and ordered the driver not to obey the policemen but instead obey him, as he (accused) was the boss. The truck driver followed the accuseds order and drove the truck towards Shilan, La Trinidad, Benguet with the accused following closely behind in his vehicle. Inspector Leygo and his group arrived in time to see the truck pulling away and so they gave chase. The police were able to overtake and stop the truck at Dengsi, Tomay, La Trinidad, Benguet. Inspector Leygo confronted the truck driver and asked him why he still insisted on proceeding to Shilan to unload chicken manure despite the fact that he was ordered to go back earlier in the evening. The truck driver stated that he was just following the orders of the accused. Immediately, Inspector Leygo turned around to see the accused who had at that time alighted from his vehicle behind the truck. Inspector Leygo asked the accused why he insisted on defying the ban on the unloading and loading of chicken manure. Instead of answering however, the accused pointed a finger on the policeman and uttered words like "Babalian kita ng buto" (Ill break your bones). "Ilalampaso kita" (Ill scrub you). "Pulis lang kayo" (you are only policemen) and other unsavory and insulting words. Inspector Leygo who was a little bit angry warned the accused to stop uttering further insulting words and cautioned him to take it easy and then informed him that he was being arrested for violation of the chicken dung ordinance. The accused removed his jacket, placed it inside the vehicle, assumed a fighting stance and challenged the policeman. Inspector Leygo then approached the accused and warned him anew that he was being arrested. The accused responded by punching Inspector Leygo on his face, particularly on his lip. The two then grappled as Inspector Leygo tried to hold the accused. Finally, with the help of Policemen Dayap and Bongcado, the accused was subdued. The accused was then pushed into one of the police cars but he resisted until Alfredo Castro, one of the chicken dung dealers in the area, boarded the police car to accompany him. The accused was brought to the police headquarters where Inspector Leygo immediately called Mayor Tabanda who arrived at about 10:00 oclock that same evening. She confronted the two protagonists and at the same time admonished the accused for violating Ordinance No. I-91. Mayor Tabanda then accompanied the accused and Inspector Leygo to the Benguet General Hospital where both were examined by Dr. Antonio T. Carino. In the medicolegal certificate (Exhibit "A") of Inspector Leygo, his injury described as "contusion with 0.5 laceration, upper lip, left side" with healing period from 5 to 7 days. Subsequently, this present case was filed against the accused. Reproduced from the same decision of the appellate court, the defenses version5 runs: At about 8:00 oclock in the evening of March 20, 1993, while the accused was at the Trading Post at Km. 5, La Trinidad, Benguet, the driver reported to him that he was prevented by the police from unloading chicken manure at Shilan, La Trinidad, Benguet. The accused reminded the driver that he should have brought the chicken manure to Acop, Tublay, Benguet where dealers sell it when prevented from unloading within the municipality of La Trinidad, Benguet. As it would be more expensive to return the chicken dung to Batangas where it came from, the accused told the driver to bring the chicken dung to Acop, Tublay, Benguet. The driver expressed his fear that the police might stop him along the way and so the accused ordered the driver to proceed and gave him the assurance that he (accused) would follow later. The truck then proceeded as instructed and the accused following after a short while. Arriving at Cruz, La Trinidad, Benguet, the accused noticed that the truck was stopped at the side of the road while a police vehicle and three policemen were across the road. Thinking that the policemen were there trying to extort money from the driver, the accused told the truck driver to proceed. The truck driver complied and the accused tailed along. When the truck and the accused reached Dengsi, Tomay, La Trinidad, Benguet, he heard a police siren from behind. Immediately, a police vehicle overtook the truck, another police vehicle was running along side the accuseds vehicle and a third police vehicle was right behind them. Thus, the truck and the accused had no recourse but to stop. Inspector Leygo alighted from one of the police vehicles and angrily uttered so many words at the accused. The policeman then held the collar of accuseds jacket and forced the latter to get out of his vehicle while shouting "Ang tigas ng ulo mo. Sige, bumunot ka." (You are very stubborn. Go ahead, draw your gun.) The accused explained that he had no gun to draw while removing his jacket and raising his hands to show that there was no gun

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on his body. Inspector Leygo then held the left hand of the accused and tried to put handcuffs on him. The accused tried to resist, pleading that he had no fault and at the same time asking what infraction of law he committed. Inspector Leygo answered by uttering insulting words and pointing his left forefinger on the accuseds face while his right hand was poking a gun on the accused. The accused noticed that the policeman smelled of liquor. A crowd started to gather around the scene. Sensing that the onlookers were on his side, the accused stated that he was going to get his camera inside his vehicle. As he was opening the door, Inspector Leygo suddenly slapped and boxed him in the stomach causing the accused to feel dizzy. This assault weakened him and so he did not resist when the police pushed him inside the police vehicle. Inspector Leygo then ordered his men to bring the accused to the police headquarters. The accused recognized Alfredo Castro among the onlookers and because he (accused) knew him to be one of the chicken dung dealers, asked him (Castro) to accompany him to the police headquarters for fear that something might happen. At the police station, the accused suggested that Inspector Leygo should undergo medical examination to determine if the policeman was positive of alcoholic breath. The accused, however, was examined ahead and was issued a medical certificate (Exhibit "4") which described his injury as "erythema, lip left side face" and "contusion-midepigastric area". The healing period is from 3 to 5 days. With him sustaining this injury, the accused now wonders why this charge was filed against him. After weighing the parties respective versions of the incident, the trial court found that of the People more credible. Accordingly, in its decision of April 22, 1994,6 it convicted petitioner of the crime of direct assault and sentenced him, thus: WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt, the Court hereby renders judgment finding the accused Enrique "Totoy" Rivera GUILTY and sentences him to suffer an indeterminate penalty of Four (4) Months and One (1) Day of arresto mayor as MINIMUM to One (1) Year, One (1) Month and Eleven (11) Days of prision correccional as MAXIMUM. He is likewise ordered to pay a fine of FIVE HUNDRED PESOS (P500.00) and to pay the costs. SO ORDERED. With his motion for reconsideration having been denied by the trial court, petitioner then went on appeal to the Court of Appeals whereat his recourse was docketed as CA-G.R. CR No. 17284. As stated at the outset hereof, the appellate court, in its decision7 of October 16, 1998, affirmed in toto that of the trial court, to wit: WHEREFORE, premises considered the decision appealed from is hereby affirmed in toto. SO ORDERED, and denied petitioners motion for reconsideration in its resolution of April 5, 1999.8 Hence, this petition for review on certiorari, submitting for our consideration the principal issue of whether or not the Court of Appeals erred in affirming the judgment of conviction rendered by the trial court. We AFFIRM. Direct assault, a crime against public order, may be committed in two ways: first, by any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition; and second, by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.9 Unquestionably, petitioners case falls under the second mode, which is the more common form of assault and is aggravated when: (a) the assault is committed with a weapon; or (b) when the offender is a public officer or employee; or (c) when the offender lays hand upon a person in authority.10 In this recourse, petitioner argues that the appellate court, like the trial court, erred in finding the testimony of complainant Lt. Leygo as clear and convincing. In an attempt to impugn the latters credibility, petitioner contends that Lt. Leygo was mumbling while giving his testimony, adding that the latter failed to identify which of his (petitioner) hands was used and the precise distance between them when he punched the police lieutenant. Admittedly, the record shows that the trial judge had to call Lt. Leygos attention for testifying in such a low voice while on the witness box. Evidently, however, this did not prevent the trial court into believing his testimony and from according it full faith and credit. As it is, the witness was able to narrate and communicate the events that transpired. Both the trial court and the Court of Appeals found the witness to have clearly and adequately recounted how the incident happened, and we find no valid reason to discredit the truth and veracity of his narration. We quote: Q Now, you said that Mr. Rivera faced you, when he faced you after he removed his jacket what did you do? A He positioned himself in a fighting stance, sir. Q What do you mean "in the fighting stance"? A He raised his fist. (Witness raised his hands with his clenched fist in front of him). Q How about you, what did you do when Mr. Rivera did that? A I informed him that I am arresting him. Q How far were you when he faced you at first? A At first before I went near him is about 6 feet, sir.

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Q Now, you said you approached him, is that correct? A Yes, sir. Q What did you do when you approached him? A I told him that I am arresting him, sir. Q And what was his response? A He punched me at my face, sir. Q You said he punched you, with what hand did Mr. Rivera punch you? A I think it is his left hand, sir.11 Nor is Lt. Leygos credibility any less diminished by the circumstance that he failed to categorically identify which of petitioners hands was used in punching him, and the exact distance between them at that time. In all likelihood, this police officer was not expecting a physical attack by the petitioner as he was just confronting the latter about the prohibited unloading of chicken dung when petitioner laid hand on him. Under this scenario, any person, like Lt. Leygo, cannot be expected to remember every single detail of the incident with perfect recall.12 For sure, far from adversely affecting Lt. Leygos credibility, his failure to recall every minute detail of what transpired even fortifies it. We have thus held that the failure of a witness to recall each and every detail of an occurrence may even serve to strengthen rather than weaken his credibility because it erases any suspicion of a coached or rehearsed testimony.13 What is vital in Lt. Leygos testimony is the fact that petitioner punched him on his face, about which he was steadfast and unflinching. In any event, this Court has said time and again that the assessment of the credibility of witnesses and their testimonies is best undertaken by the trial court, what with reality that it has the opportunity to observe the witnesses first-hand and to note their demeanor, conduct, and attitude while testifying. Its findings on such matters, absent, as here, of any arbitrariness or oversight of facts or circumstances of weight and substance, are final and conclusive upon this Court and will not to be disturbed on appeal.14 Petitioner also asserts that the testimonies of prosecution witnesses SPO1 Jose Bangcado and Brenda Dup-et did not corroborate Lt. Leygos testimony. For, while SPO1 Bangcado merely testified during direct examination that petitioner punched Lt. Leygo, this witness failed to reiterate said testimony during cross-examination. As regards prosecution witness Brenda Dup-et, petitioner alleged that this witness never testified that petitioner boxed Lt. Leygo. The imputed shortcomings in the testimonies of said two (2) prosecution witnesses are not of their own making. A witness is supposed to confine his answers only to questions propounded of him. Here, the defense counsel focused his line of questioning on what the two protagonists were doing immediately prior to the punching incident, and the answer correctly received by counsel was that both petitioner and Leygo were pushing each other. There is no showing that counsel asked the witness as to what happened after the pushing incident, as what the public prosecutor did of SPO1 Bangcado during the latters direct examination, to wit: PROS. BOTENGAN: Q And what happened when they faced each other? A Totoy Rivera was shouting at Lt. Leygo, sir. Q What was he shouting? A "Bakit ninyo ako tinutugis, hindi ako criminal. Magbabayad kayo rito. Hindi ninyo ako kaya, pulis lang kayo." And some other words but I cannot remember them all, sir. Q What else, if any, did he say? COURT: He said he cannot remember the other words. WITNESS: There is one thing more, sir. "Ilalampaso kita. Babalian kita ng buto." And others, sir. PROS. BOTENGAN: Q To whom was Mr. Rivera saying this? A To Lt. Leygo, sir. Q What was Mr. Rivera doing when he said these? A He was pointing to the face of Lt. Leygo and they are becoming closer and closer with each other, sir. Q At that time, what was Lt. Leygo doing?

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A What I saw was they were pushing to one another and after that Totoy Rivera boxed Lt. Leygo, sir. Q You said they were pushing one another, what part of their body were they holding? A At the breast, sir. Q So each one was holding each others breast, is that what you mean? A Yes, sir. Q How long did they push each other? A Seven to ten seconds, sir. Q And was Lt. Leygo saying anything? A He was trying to arrest Totoy Rivera, sir. Q You said that he was trying to arrest Totoy Rivera, did you hear him if he says anything? A He was convincing Totoy Rivera to go to the Municipal Hall, sir. Q You said Totoy Rivera boxed Lt. Leygo, what part of the body of Lt. Leygo was hit? A His face, sir. Q What part of his face? A Here, sir. (Witness referring to his lower lip. Witness is holding his lower lip). Q What happened when Lt. Leygo was hit? A He ordered us to arrest Totoy Rivera, so were able to subdue Totoy Rivera and placed him in the car, sir.15 But even assuming, in gratia argumente, that Lt. Leygos testimony was not corroborated by the two (2) other prosecution witnesses during their crossexaminations, still the day cannot be saved for the petitioner. Well-settled is the rule in this jurisdiction that the testimony of a single witness, if straightforward and categorical, is sufficient to convict. After all, witnesses are weighed, not numbered, and evidence are assessed in terms of quality, not quantity. It is not uncommon, then, to reach a conclusion of guilt on the basis of the testimony of a lone witness. Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observations had been inaccurate.16 Unfortunately for the petitioner, the trial court found nothing to indicate that Lt. Leygo falsified the truth or that his observations had been inaccurate. Petitioner theorizes that he could not have hit Lt. Leygo, what with the circumstance that his co-policemen were present at the scene of the incident, and he finds it unusual that none of them retaliated if he really hit Lt. Leygo. We are not persuaded. The evidence on record clearly bears out that it was Lt. Leygo who was attacked by petitioner, not the other way around, as petitioner would want us to believe. Both the witnesses for the prosecution and the defense are one in saying that it was only petitioner who was in confrontation with Lt. Leygo. Evidently, petitioners anger started to burst when the truck driver reported to him that Lt. Leygo prohibited the unloading of the chicken dung and ordered him to return, such that when the same delivery truck was again intercepted by Lt. Leygos group, petitioners anger was too much for him to contain. We quote with approval what the trial court has said in its decision: The accused, however, denies that he ever laid hands on the cop. But the bigger question is, how then did the policeman sustain his injuries? It is highly improbable, if not absurd, for the policeman to inflict it on himself. It is also very unlikely that his co-policemen would punch him just to make it appear that the accused did it. The accused admits of being at the place. He admits having been confronted by the policeman but he denies that he ever lifted a finger against the policeman. Yet all the witnesses both for the prosecution and the defense are in accord in saying that it was only the accused who was in confrontation with the policeman. The only logical conclusion that can be derived from this is that it is indeed the accused who punched the policeman. Evidence to be believed must not only proceed from the mouth of the credible witness but it must be credible in itself. No better test has yet been found to measure the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind (People vs. Maspil, Jr., 186 SCRA 751).1awphi1.zw+ That the other police officers did not retaliate is no basis for us to share petitioners submission that Lt. Leygo was the aggressor. In the nature of things, they naturally reacted the way they should, i.e. placed petitioner under arrest when ordered by Lt. Leygo. Petitioner next contends that Lt. Leygo was not in the performance of his official duties as a police officer and as Deputy Chief of Police for Operation and Patrol at the time he was attacked. Again, We disagree. It is a matter of record that at the time of the assault, Lt. Leygo was engaged in the actual performance of his official duties. He was wearing the designated police uniform and was on board a police car conducting a routinary patrol when he first came upon the truck unloading chicken manure. Because the unloading of chicken dung was a violation of La Trinidad Municipal Ordinance No. 1-91, the lieutenant ordered the truck driver to return from where he came, but petitioner, in defiance of such lawful order, commanded the truck driver to return to Shilan, the place where the truck was first intercepted, and on being informed that the same truck had returned, the lieutenant had every reason to assume it did return for the purpose of unloading its cargo of chicken dung, thus stopped it from doing so.

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Under the circumstances, it simply defies reason to argue that Lt. Leygo was not in the performance of his lawful duties as a police officer when the assault upon him was perpetrated by the petitioner. Nor are we impressed by petitioners submission that the prosecutions failure to present the doctor, who examined Lt. Leygo, proved disastrous to the Peoples case, arguing that the alleged injury of Lt. Leygo cannot be proved without the testimony of the attending physician. That Dr. Antonio T. Carino did not testify on the medical certificate he issued is of no moment. If ever, the medical certificate is only corroborative in character and is not an indispensable element of the crime of direct assault filed against petitioner. The unequivocal piece of evidence against petitioner is no less Lt. Leygos credible and consistent testimony that he was punched on his face by the petitioner. Lastly, petitioner puts the Court of Appeals to task for sustaining the trial courts observation that he exuded an aura of arrogance and defiance of authorities. We have consistently ruled that the trial court judge is in the best of position to see and observe the demeanor, actuation and countenance of a witness, matters which are not normally expressed in the transcripts of his testimony. We see no reason, therefore, to disturb the following observations of the trial court in its decision: The demeanor of the accused on the witness stand also shows that he is the kind who is impatient with authority. His manner of answering questions bespeaks of one who has trouble abiding with authority. He portrayed a very aggressive manner and his answers were always on the defensive as if he had every right in this world to do and say whatever he wanted to. Over all, he exuded an aura of arrogance and defiance of authority. In closing, let it be noted that the attention of this Court has not been called to of any ulterior or improper motive on the part of the prosecution witnesses to falsely testify against petitioner. Absence such a motive, the presumption is that they were not so moved, and their testimonies are entitled to full faith and credit.17 WHEREFORE, the petition is hereby DENIED, and the assailed decision and resolution of the Court of Appeals AFFIRMED in toto. Costs against petitioner. Art 177 Usurpation of authority or official functions 8) G.R. NO. 154098 July 27, 2005 JOSE C. MIRANDA, Petitioners, vs. HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his capacity as Secretary of the DILG,* and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents. First, the facts. The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.1 Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312.2 In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsmans preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor;3 (b) gave directives to the heads of offices and other employees;4 (c) issued Office Order No. 11-021 which authorized certain persons to start work;5 and (d) insisted on performing the functions and duties of Mayor despite Navarrros requests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position.6Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC).7 In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith.8 He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days.9 He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same.10 Notably, Mayor Mirandas counter-affidavit also stated that he left the mayoralty post after "coercion" by the Philippine National Police.11 On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel.12 After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000.13 Coquia held that Miranda reassumed his office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved.14 Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquias resolution to the Ombudsmans Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquias findings and recommended the filing of the case against Mayor Miranda.15 He pointed out that Mayor Mirandas invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period.16 He further noted that Miranda violated the orders of both the Ombudsman and the DILG.17 Ombudsman Desierto adopted the Chief Legal Counsels recommendation,18 and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero.Subsequently, the prosecution filed an amended Information with the Sandiganbayan,19 to which the petitioner interposed a negative plea.20 On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.21 Miranda opposed the motion on the ground that the offense of usurpation of authority or official functions under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve "fraud upon government or public funds or property."22

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In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days.23 The anti-graft court held that a violation of Article 177 of the RPC involves fraud "which in a general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another."24 It further ruled that Mirandas act fell within the catch-all provision "x x x or for any offense involving fraud upon government."25 Mirandas motion for reconsideration was denied in the Sandiganbayans Resolution dated 17 June 2002.26 Hence, the present petition assailing the Sandiganbayans orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functions involves "fraud upon government or public funds or property" found in Section 13 of R.A. No. 3019. We rule in the negative. First. Section 13 of R.A. No. 3019, as amended, provides: Section 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The word "public" precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as "government" funds, as petitioner claims is the laws intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the AntiGraft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials. Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioners act fell within the catch-all provision "x x x or for any offense involving fraud upon government. The term "fraud" is defined, viz.: An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding27 It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against the government." It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase "any offense involving . . . public funds or property." It ought to follow that "fraud upon government" was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position. The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve "fraud upon government or public funds or property" as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held: Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001: x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived of. Moreover, in private complainant Amelita S. Navarros Affidavit of Complaint dated November 26, 1997, she said: "x x x, he proceeded to his office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government." Accuseds acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision "x x x or for any offense involving fraud upon government x x x." Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that "x x x under Section 13 of the AntiGraft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x." In fact, as early as 1984 in the case ofBayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said: Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course. There are no ifs and buts about it. x x x After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information.

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There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief.28 (Citations omitted) In denying petitioners Motion for Reconsideration, the Sandiganbayan further held: Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 "x x x or for any offense involving fraud upon government or public funds or property x x x." He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property. Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case, says: "x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of." When accused-mayor appointed persons in various positions, he indirectly dealt with the citys funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the citys funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city. Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to do and function as such. x x x." We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey. Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied. Accordingly, the Motion for Reconsideration is denied for lack of merit.29 This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply supported by the record. Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.30 The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public funds if these public officials just collected their salaries without rendering service to the government." It further asserts that "fraud upon government" must be read so as to require that malversation of funds was committed.31 This is acomplete volte face from its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property.32 What is more, adopting the dissenting opinions line of reasoning would render superfluous the phrase "fraud upon government" as malversation is subsumed by "any offense involving public funds or property." Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioners pretense cannot stand scrutiny.Petitioners own affidavit states:33 8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City; 9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office; 10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may happen to me and any constituents; x x x.34 (Emphases supplied) By petitioners own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez.35Petitioner cannot escape from his own admission. To be sure, petitioners honest belief defense is old hat. In the 1956 case of People v. Hilvano,36 the facts are: When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latters temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibited to him Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor.

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Wherefore Francisco Hilvano was prosecuted and after trial was convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time. In rejecting the defense of the accused Hilvano, we ruled:37 There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted. Petitioners excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands. Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient. Understandably, the dissent argues that the Amended Information is insufficient in form as it should have "expressly and clearly stated that Miranda re-assumed office to defraud the government or that in re-assuming office Miranda committed acts that defrauded the government"38 and that it is improper to take into account the petitioners admissions in his affidavit for this purpose. With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached.39 Objections to the sufficiency of the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information "does not conform substantially to the prescribed form."40 Needless to state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this objection in amotion to quash or motion for bill of particulars before entering his plea.41 The irregular procedure followed by the dissent would encourage the pernicious practice of "sandbagging" where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate.42 It is precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure. Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, the dissenting opinions arguments still do not convince. The validity or sufficiency of allegations in an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz: SECTION 9. Cause of the Accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.43 The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison detre of the rule is to enable the accused to suitably prepare his defense.44 A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents: That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.45 Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These allegations are clear enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does. Fifth. The dissenting opinion also contends that the Ombudsmans authority to preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped authority because he reassumed office after 60 days.46 With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether theSandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsmans order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v. Mojica is inapropos. In Garcia, we held: Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner.We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the

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lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. 47 (Emphases supplied) Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact, the Court expressly stated that its decision was rendered without subscribing to the petitioners claim that the Local Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspension since it was admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which the suspension was imposed was already served. The dissenting opinion also cites the case of Rios v. Sandiganbayan48 as basis for assailing the Ombudsmans order of preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides: SECTION 63. Preventive Suspension. (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a component city or municipality; or (3) By the mayor, if the respondent is an elective official of the barangay. (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole49 and Garcia v. Mojica.50 In Hagad, we held: Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.51 In the same vein, we made the following observations in Garcia, viz.: Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. x x x It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently." 52 (Emphases supplied) There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel53 explained during the Senate deliberations that the purpose of Section 63 of the Code isto prevent the abuse of the power of preventive suspension by members of the executive branch, to wit:

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The President.54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - Senator Pimentel. That is true, Mr. President. The President. - - contending that under the new Constitution, even the President does not have that right. Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President. The President. Can that be done under this new Code? Senator Pimentel. Under our proposal, that can no longer be done, Mr. President.55 Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.56 The Ombudsmans power of preventive suspension is governed by Republic Act No. 6770,57otherwise known as "The Ombudsman Act of 1989," which provides: SECTION 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.58 (Emphasis supplied) The six-month period of preventive suspension imposed by the Ombudsman59 was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature. The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy,60 fixed term of office61 and classification as an impeachable officer.62 This much was recognized by this Court in the earlier cited case of Garcia v. Mojica.63Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.64 The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions. The short reply is that all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice it to say that the proper remedies against abuse in the exercise of power are a petition forcertiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment of the Ombudsmans enabling law by the legislature, not a contortionist statutory interpretation by this Court. IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days.

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