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The fact that international law has been made part of the law of the land does not

pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. 1. SECRETARY OF JUSTICE v. LANTION Accordingly, the principle lex posterior derogate priori takes effect a treaty may repeal a FACTS: statute and a statute may repeal a treaty. In states where the Constitution is the highest law of Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated Philippines, signed in Manila the extradition Treaty Between the Government of the if they are in conflict with the constitution Philippines and the Government of the U.S.A. The Philippine Senate ratified the said Treaty. On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs 2. Government of United States of America v. Hon. Guillermo G. Purganan U.S Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Facts Jiminez to the United States. Pursuant to the existing RP-US Extradition Treaty,[6] the United States Government, through On the same day petitioner designate and authorizing a panel of attorneys to take charge of diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, and to handle the case. Pending evaluation of the aforestated extradition documents, Mark 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly Jiminez through counsel, wrote a letter to Justice Secretary requesting copies of the official authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario extradition request from the U.S Government and that he be given ample time to comment on Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs the request after he shall have received copies of the requested papers but the petitioner (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to denied the request for the consistency of Article 7 of the RP-US Extradition Treaty stated in Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Article 7 that the Philippine Government must present the interests of the United States in any Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary proceedings arising out of a request for extradition. Restraining Order (TRO) by the RTC of Manila, Branch 25.[7] The TRO prohibited the RULING: Petition dismissed. Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity The human rights of person, whether citizen or alien , and the rights of the accused guaranteed of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR in our Constitution should take precedence over treaty rights claimed by a contracting state. No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was The duties of the government to the individual deserve preferential consideration when they ordered to furnish private respondent copies of the extradition request and its supporting collide with its treaty obligations to the government of another state. This is so although we papers and to grant the latter a reasonable period within which to file a comment and recognize treaties as a source of binding obligations under generally accepted principles of supporting evidence.[8] international law incorporated in our Constitution as part of the law of the land. Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, The doctrine of incorporation is applied whenever municipal tribunals are confronted with 2000 Resolution.[9] By an identical vote of 9-6 -- after three justices changed their votes -- it situation in which there appears to be a conflict between a rule of international law and the reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the provision of the constitution or statute of the local state. right to notice and hearing during the evaluation stage of the extradition process. This Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition Resolution has become final and executory. request and its supporting papers, and to grant him (Mark Jimenez) a reasonable period within Finding no more legal obstacle, the Government of the United States of America, represented which to file his comment with supporting evidence. by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Under the Doctrine of Incorporation, rules of international law form part of the law of the land Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter and no further legislative action is needed to make such rules applicable in the domestic alia, that Jimenez was the subject of an arrest warrant issued by the United States District sphere. Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in The doctrine of incorporation is applied whenever municipal tribunals are confronted with connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to situations in which there appears to be a conflict between a rule of international law and the defraud the United States and to commit certain offenses in violation of Title 18 US Code provisions of the constitution or statute of the local state. Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 presumed that municipal law was enacted with proper regard for the generally accepted US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US principles of international law in observance of the incorporation clause in the above cited Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent constitutional provision. the flight of Jimenez, the Petition prayed for the issuance of an order for his immediate arrest In a situation, however, where the conflict is irreconcilable and a choice has to be made pursuant to Section 6 of PD No. 1069. between a rule of international law and a municipal law, jurisprudence dictates that municipal Before the RTC could act on the Petition, Respondent Jimenez filed before it an Urgent law should be upheld by the municipal courts, for the reason that such courts are organs of Manifestation/Ex-Parte Motion,[10] which prayed that petitioners application for an arrest municipal law and are accordingly bound by it in all circumstances. warrant be set for hearing. CHAPTER XIII RIGHT TO BAIL 1. The right to bail, 104 SCRA 372 Is bail available in extradition cases

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash.[11] After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001.[12] RULING Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4[59] of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.[60] It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.[61] Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot

be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti[62] in arguing that, constitutionally, [n]o one shall be deprived of x x x liberty x x x without due process of law. Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard[63] but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard.[64] Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough.[65] In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests.[66] Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step

towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14[67] of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion[68] and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights.[69] Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application.[70] Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances[71] including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos,[72] the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is

suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accusedappellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.[73] It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the

Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. 3. Rodriguez v Presiding Judge FACTS: Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition of Mark Jimenez. A hearing was held to determine whether a warrant of arrest should be issued. Afterwards, such warrant was issued but the trial court allowed Jimenez to post bail for his provisional liberty. ISSUE: Whether or not extraditee is entitled to notice and hearing before issuance of warrant of arrest Whether or not the right to bail is available in extradition proceedings RULING: Five Postulates of Extradition 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime.[30] It is

the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. xxx Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite. Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to determine

whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? Due Process Is an extraditee entitled to notice and hearing before the issuance of a warrant of arrest? It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first

impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. xxx Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. xxx At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Right to Bail Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the

suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application. Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Bail is a Matter of Discretion on the part of Appellate Court - when can the right to bail in extradition be available - Bail may be granted to a possible extraditee only upon a clear and convincing showing: 1) that he will not be a flight risk or a danger to the community and; 2) that there exist special, humanitarian and compelling circumstances.

On November 22, 1999, Hongkong Special Administrative Region filed with the RTC of Manila a petition for his extradition. Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia granted. Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge. ISSUE: Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a potential extradite a right to bail. HELD: The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2 Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her from filing a motion for bail, aright to due process under the Constitution. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. [A prospective extraditee may be allowed on bail if he can prove by CLEAR AND CONVINCING EVIDENCE that he is not a flight risk and that he is ready and willing to comply with the processes of the extradition court. A clear and convincing evidence is an evidence greater than mere preponderance of evidence but below proof beyond reasonable doubt]

Is Recognizance allowed after conviction by final judgment? No. In ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO BUGTAS, RTC 2 BORONGAN, SAMAR, 475 SCRA 175, it was held that respondent Judge is guilty of gross ignorance of the law for ordering the release of Bagaporo pending the approval of his application for parole and before the completion of the minimum period of the sentence imposed upon him. It is patently erroneous to release a convict on recognizance. Section 24, Rule 114 provides that there shall no bail for a convict after final judgment. The only exception is when the convict applies for Probation before he commences to serve his sentence and that the offense and the penalty for the offense is within the purview of the Probation Law. Sections 5 and 16 of Rule 114 of the Rules of Court (on the different kinds of bail) APPLIES ONLY TO AN ACCUSED UNDERGOING PREVENTIVE IMPRISONMENT DURING TRIAL 4. Hongkong vs Judge Olalia OR ON APPEAL. THEY DO NOT APPLY TO A PERSON CONVICTED BY FINAL JUDGMENT AND ALREADY SERVING SENTENCE FACTS: Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the 1. ATTY. ADALIM WHITE VS. JUDGE BAGTAS offense of accepting an advantage as an agent, conspiracy to defraud, was penalized by a R E S O L U T I O N common law of Hongkong. A warrant of arrest was issued and if convicted, he may face jail AUSTRIA-MARTINEZ, J.: terms. Before us is a verified letter-complaint dated August 10, 2001, filed by Atty. Juliana Adalim-White against Judge Arnulfo O. Bugtas, Presiding Judge, Branch 2, Regional Trial On September 23, 1999, He was arrested and detained.

Court (RTC) of Borongan, Eastern Samar, for ignorance of the law relative to Criminal Case No. 10772 entitled People of the Philippines vs. Manuel Bagaporo, Jr The full text of the letter-complaint is as follows: I bring to the attention of your Honors the act of Honorable Judge Arnulfo O. Bugtas, Presiding Judge, Branches I and II, Regional Trial Court, Borongan, Eastern Samar for ordering the Release on Recognizance [of] Mr. Manuel Bagaporo, Jr., a convict of frustrated murder before terminating service of the minimum penalty, and pending the approval of the prisoners application for parole. Thank you.[1] In an Indorsement dated August 28, 2001, the Office of the Court Administrator directed respondent to file his comment to the complaint.[2] On October 29, 2001, respondent filed his Comment admitting that he issued an order allowing Manuel Bagaporo, Jr. (Bagaporo) to be released upon recognizance of the Provincial Jail Warden of Eastern Samar, Alexandrino R. Apelado, Sr. Respondent avers that: Bagaporo was convicted by the trial court of the crime of frustrated murder and meted the penalty of imprisonment ranging from four years and two months to eight years and one day; Bagaporo served sentence; subsequently, he filed an application for release on recognizance; in support of his application, Provincial Jail Warden Apelado issued a certification to the effect that Bagaporo has been confined at the Provincial Jail since February 9, 1996 and is already entitled to parole; another certification was issued by Supervising Probation and Parole Officer Eulalia R. Columbretis showing that Bagaporo had applied for parole in line with the Department of Justices Maagang Paglaya Program. Respondent contends that on the basis of these certifications and on the rule that bail being discretionary upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, the court granted Bagaporos application for bail upon recognizance of Apelado.[3] In our Resolution of November 25, 2002, we directed the parties to manifest to this Court if they are willing to submit this case for resolution on the basis of the pleadings filed.[4] In his Manifestation dated January 27, 2003, respondent requested that a formal investigation be conducted to enable him to face his accuser.[5] On the other hand, despite due notice, complainant failed to comply with the November 25, 2002 Resolution of this Court. On November 16, 2004, respondent filed a Motion to Dismiss on the ground of lack of evidence and that complainant is not interested in prosecuting her complaint.[6] In our Resolution of February 7, 2005, we referred the instant case to Justice Lucas P. Bersamin of the Court of Appeals (CA) for investigation, report and recommendation on grounds that desistance of a complainant is not a basis for dismissing an administrative case and because there is a need to establish certain facts surrounding the complained acts allegedly committed by respondent.[7] Thereafter, the Investigating Justice set the case for hearing on various dates. On April 15, 2005, respondent again filed a Motion to Dismiss on the ground that complainant failed to appear during the hearings set by the Investigating Justice on March 30 and 31, 2005.[8] On April 29, 2005, the Investigating Justice issued a Resolution denying respondents Motion to Dismiss and resetting the hearing for the last time on May 31, 2005, with warning that the case shall be deemed submitted for study, report and recommendation should the parties fail to appear at the date set for hearing.[9] In a Manifestation dated May 13, 2005, complainant indicated her desire to submit the case for resolution on the basis of the pleadings and annexes filed.[10] On the other hand, respondent

sent a telegraphic communication dated May 31, 2005 manifesting that the CA may consider the case submitted for resolution; and praying that he be allowed to submit a memorandum.[11] The Investigating Justice granted respondents motion.[12] On June 30, 2005, respondent filed his Memorandum through registered mail.[13] Accordingly, the Investigating Justice recommended that respondent be fined in the amount of P25,000.00.[15] We agree with the Investigating Justice that respondent is guilty of gross ignorance of the law but not as to the recommended penalty. Respondent is being charged with ignorance of the law for having ordered the release of Bagaporo pending approval of the latters application for parole and before his completion of the minimum period of the sentence imposed upon him. Respondent contends that his order allowing the release on recognizance of Bagaporo is in consonance with the provisions of Section 16, Rule 114 of the Rules of Court which provides as follows: Sec. 16. Bail when not required; reduced bail or recognizance. No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof or the proceedings on appeal. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.[16] Based on the above-quoted Rule, respondent argues that since Bagaporo had already been in prison for a period which is equal to the minimum of his sentence, his release on recognizance is in order. Respondent also contends that he simply exercised his discretion in allowing Bagaporo to be released on bail on the strength of the provisions of the first paragraph of Section 5, Rule 114 of the Rules of Court which provides that upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.[17] We are not persuaded. At the outset, it must be noted that Bagaporo was sentenced to suffer the penalty of imprisonment ranging from four years and two months to eight years and one day. It is not disputed that he began to serve sentence on February 9, 1996. Counting four years and two months from said date the minimum period of Bagaporos sentence should have been completed on April 9, 2000. Hence, we agree with the observation of the Investigating Justice that it is wrong for respondent to claim that Bagaporo had already served the minimum of his sentence at the time that he was granted bail on recognizance, that is, on February 16, 2000.[18] Furthermore, it is patently erroneous for respondent to release a convict on recognizance. Section 24, Rule 114 of the Rules of Court is plain and clear in prohibiting the grant of bail after conviction by final judgment and after the convict has started to serve sentence. It provides: SEC. 24. No bail after final judgment; exception. An accused shall not be allowed bail after the judgment has become final, unless he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation

Law. In case the accused has applied for probation, he may be allowed temporary liberty under his bail, but if no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.[19] he only exception to the above-cited provision of the Rules of Court is when the convict has applied for probation before he commences to serve sentence, provided the penalty and the offense are within the purview of the Probation Law. In the instant case, there is no showing that Bagaporo applied for probation. In fact at the time of his application for release on recognizance, he was already serving sentence. When he was about to complete service of the minimum of his sentence, he filed an application for parole. However, there is no evidence to show that the Board of Pardons and Parole approved his application. We agree with the Investigating Justice in holding that a convicts release from prison before he serves the full term of his sentence is either due to good conduct allowances, as provided under Act No. 1533[20] and Article 97 of the Revised Penal Code, or through the approval of the convicts application for parole. A good conduct allowance under Act No. 1533 and Article 97 of the Revised Penal Code may be granted by the Director of Prisons (now Director of the Bureau of Corrections), while the approval of an application for parole is sanctioned by the Board of Pardons and Parole. In addition, a convict may be released from prison in cases where he is granted pardon by the President pursuant to the latters pardoning power under Section 19, Article VII of the Constitution.[21] In the present case, aside from the fact that there is no evidence to prove that Bagaporos application for parole was approved by the Board of Pardons and Parole, there is neither any showing that he was extended good conduct allowances by the Director of Prisons, nor was he granted pardon by the President. Hence, there is no basis for respondent in allowing Bagaporo to be released on recognizance. Moreover, respondent should know that the provisions of Sections 5 and 16, Rule 114 of the Rules of Court apply only to an accused undergoing preventive imprisonment during trial or on appeal. They do not apply to a person convicted by final judgment and already serving sentence. We have held time and again that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules.[22] It is imperative that he be conversant with basic legal principles and be aware of well-settled authoritative doctrines.[23] He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the rule of law.[24] When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would be gross ignorance of the law.[25] In the present case, we find respondents ignorance or utter disregard of the import of the provisions of Sections 5, 16 and 24, Rule 114 of the Rules of Court as tantamount to gross ignorance of the law and procedure. As to the imposable penalty, Section 8(9), Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law or procedure as a serious charge. Under Section 11(A) of the same Rule, the imposable penalty, in case the respondent is found culpable of a serious charge, ranges from a fine of not less than P20,000.00 but not more than P40,000.00 to dismissal from the service. This is not the first time that respondent judge was found guilty of gross ignorance of the law and procedure. In Docena-Caspe vs. Bugtas,[26] respondent was fined P20,000.00 for having granted bail to an accused in a murder case without conducting hearing for the purpose of determining whether the evidence of guilt is strong. He was warned that a repetition of the

same or similar act shall be dealt with more severely. Hence, we deem it proper to impose the penalty of P40,000.00. WHEREFORE, respondent Judge Arnulfo O. Bugtas is found guilty of gross ignorance of the law. He is ordered to pay a FINE in the amount of Forty Thousand Pesos (P40,000.00) and is STERNLY WARNED that a repetition of the same or similar act shall be dealt with more severely. SO ORDERED. 2. Bail, 81 scra 188 3. Excessive Bail: 1. People vs Bucalon DECISION CARPIO MORALES, J.: Raising only questions of law, the Peoples petition for review on certiorari assails the January 31, 2007 Decision[1] of the Court of Appeals which affirmed the November 12, 2002 Order of the Regional Trial Court (RTC) of Surigao City, Br. 29 in Criminal Case No. 5144 (the case) fixing bail for the temporary liberty of Luis Bucalon Plaza alias Loloy Plaza (respondent) who was indicted for Murder. The case was originally raffled to Branch 30 of the Surigao RTC presided by Judge Floripinas Buyser (Judge Buyser). After the prosecution rested its case, respondent, with leave of court, filed a Demurrer to Evidence.[2] The Demurrer was denied by Judge Buyser by Order[3] of March 14, 2002, the pertinent portion of which reads: xxxx The evidence thus presented by the prosecution is sufficient to prove the guilt of the accused beyond reasonable doubt, but only for the crime ofhomicide and not for murder, as charged. This is because the qualifying circumstance of treachery alleged in the information cannot be appreciated in this case. x x x x (Emphasis and underscoring supplied) The defense thereupon presented evidence[4] in the course of which respondent filed a Motion to Fix Amount of Bail Bond,[5]contending that in view of Judge Buysers ruling that the prosecution evidence is sufficient to prove only Homicide, he could be released on bail. He thus prayed that the bail bond for his temporary liberty be fixed at P40,000.00 which he claimed was the usual bond for Homicide in the RTC of Surigao City and Surigao del Norte. In its Opposition to Motion to Fix Amount of Bail Bond,[6] the prosecution contended, in the main, that the case being for Murder, it is non-bailable as the imposable penalty is reclusion temporal to death; that it is the public prosecutor who has exclusive jurisdiction to determine what crime the accused should be charged with; that the accused should have filed a motion/application to bail and not just a motion to fix the amount of the bail bond; that the accused had already waived his right to apply for bail at that stage of the proceedings; that Judge Buysers March 14, 2002 Order, being a mere opinion and not a ruling or a dispositive part thereof, produced no legal effect inasmuch as it had no jurisdiction to rule on a matter outside the Demurrer; and that under the Rules, the prosecution could still prove the existence of treachery on rebuttal after the defense has rested its case.

During the hearing of the Motion to Fix Amount of Bail Bond, Senior State Prosecutor Rogelio Bagabuyo questioned Judge Buysers impartiality, prompting the judge to inhibit himself and to order the case transferred to Branch 29 of the RTC for further proceedings. Branch 29 Presiding Judge Jose Manuel Tan (Judge Tan) heard the Motion to Fix Amount of Bail Bond. By Order[7] of November 12, 2002, Judge Tan, concurring with the finding of Judge Buyser that since the prosecution evidence proved only Homicide which is punishable by reclusion temporal and, therefore, bailable, ruled that respondent could no longer be denied bail. He accordingly granted respondents Motion and fixed the amount of his bond at P40,000. Petitioners motion for reconsideration cum prayer for inhibition of Judge Tan was denied for lack of merit.[8] Respondent was subsequently released[9] after he posted a P40,000 bond. Roberto Murcia (Roberto), the victims brother, impleading the People as co-petitioner, assailed the trial courts orders via petition for certiorari[10] with the Court of Appeals. Roberto faulted Judge Tan for granting bail without an application for bail having been filed by respondent and without conducting themandatory hearing to determine whether or not the prosecutions evidence is strong. The Office of the Solicitor General (OSG) adopted Robertos argument that the grant of bail to respondent without any separate hearing is contrary to prevailing jurisprudence. By Decision of January 31, 2007, the appellate court, observing that the allegations in respondents Motion to Fix Amount of Bail Bond constituted an application for bail, dismissed Robertos petition and affirmed Judge Tans orders.[11] In its present petition, the People contends that THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW AND SETTLED JURISPRUDENCE WHEN IT RULED THAT THE HEARING CONDUCTED SATISFIES THE REQUIREMENT OF DUE PROCESS AND THAT RESPONDENT IS ENTITLED TO BAIL[12] (Underscoring supplied) Section 13, Article III of the Constitution provides that "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. Section 4 of Rule 114 of the Revised Rules of Court, as amended, thus provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The exercise by the trial court of its discretionary power to grant bail to an accused charged with a capital offense thus depends on whether the evidence of guilt is strong. Stressing this point, this Court held: . . . [W]hen bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. A summary hearing is defined as such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine

itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination.[13] (Emphasis and underscoring supplied) Since Judge Tan concurred with the assessment by Judge Buyser of the prosecution evidence when he denied the Demurrer and the latters statement that the evidence was sufficient to convict respondent of Homicide, holding a summary hearing merely to determine whether respondent was entitled to bail would have been unnecessary as the evidence in chief was already presented by the prosecution. The Peoples recourse to Section 5,[14] Rule 114 of the Revised Rules of Criminal Procedure to support its contention that respondent should be denied bail is unavailing, for said Section clearly speaks of an application for bail filed by the accused after a judgment of conviction has already been handed down by the trial court. WHEREFORE, the petition is DENIED. [After the prosecution rested its case in a Murder case, respondent, with leave of court, filed a Demurrer to Evidence . The Demurrer was denied by Judge Buyser by Order of March 14, 2002, because: The evidence thus presented by the prosecution is sufficient to prove the guilt of the accused beyond reasonable doubt, but only for the crime of homicide and not for murder, as charged. This is because the qualifying circumstance of treachery alleged in the information cannot be appreciated in this case. The defense thereupon presented evidence in the course of which respondent filed a Motion to Fix Amount of Bail Bond contending that in view of Judge Buysers ruling that the prosecution evidence is sufficient to prove only Homicide, and as such, he could be released on bail. Held: The Demurrer to Evidence is tantamount to an application for bail. He could be granted bail.] 2. De la Camara vs Enage Facts: Mayor de la Camara was arrested and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co. 18 days later, the Provincial Fiscal of Agusan filed cases of multiple frustrated murder and for multiple murder against petitioner, his co-accused Tagunan and Galgo. On January 14, 1969 an application for bail was filed by petitioner which was granted and the amount was fixed at the excessive amount of P1,195,200.00. ISSUE:WON the amount of the bail bond is excessive. HELD: Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. If there were no such prohibition, the right to bail becomes meaningless. Nothing can be clearer, therefore, than that the amount of P1,195,200.00 is clearly violative of this constitutional provision under the circumstances. 2-a. Pestano vs Judge Velasco 2-b. People vs Donato Salas aka NPAs Ka Bilog was arrested and was charged for rebellion. He was charged together with the spouses Concepcion. Salas, together with his co-accused later filed a petition for the WoHC. A conference was held thereafter to hear each partys side. It was later agreed upon by both parties that Salas will withdraw his petition for the WoHC and that he will remain

in custody for the continued investigation of the case and that he will face trial. The SC then, basing on the stipulations of the parties, held to dismiss the habeas corpus case filed by Salas. But later on, Salas filed to be admitted for bail and Judge Donato approved his application for bail. Judge Donato did not bother hearing the side of the prosecution. The prosecution argued that Salas is estopped from filing bail because he has waived his right to bail when he withdrew his petition or habeas corpus as a sign of agreement that he will be held in custody. ISSUE: Whether or not Salas can still validly file for bail. HELD: The SC ruled that Salas did waive his right to bail when he withdrew his petition for the issuance of the WoHC. The contention of the defense that Salas merely agreed to be in custody and that the same does not constitute a waiver of his right to bail is not tenable. His waiver to such right is justified by his act of withdrawing his petition for WoHC. 2-c Almeda vs Villaluz Almeda vs. Villaluz F: The accused was charged with qualified theft of a motorcycle. He filed a petition to post a surety bond for his provisional release. The respondent judge denied the petition and rendered a decision that he will only grant a bail bond if it will be in cash. The amount is P15,000.00. I: Did the judge gravely abused his discretion? D: Yes. The purpose of bail bond is to secure the appearance of the accused during the hearing or whenever his presence is required by the court. Bailbond is neither penalty nor revenue for the government. A bail bond generally presupposes a surety to whom the body of the accused can be delivered. It is only because it is provided in our law that bail bond in the form of cash is accepted by our courts, otherwise, it is unacceptable. 3. Marcos v Cruz In their Petition for Certiorari and Prohibition, the petitioners pray that the order of the respondent judge dated December 29, 1938, denying another motion filed by them to be admitted to bail, be set aside, and by way of affirmative relief ask that they be set at liberty upon giving bail in the amount to be fixed. On December 7, 1938, the Provincial Fiscal of Laguna, who was assigned as such in Ilocos Norte, filed the following Information: "The undersigned charges Mariano Marcos, Pio Marcos, Ferdinand Marcos, Quirino Lizardo, and John Doe [whose identity has so far not been established], with the crime of murder, committed as follows: "That on or about the night of September 20, 1935, in the municipality of Batac, Province of Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, armed with firearms, acting upon a common understanding and conspiring with one another, wilfully, unlawfully, and feloniously, with treachery, evident premeditation, and intent to kill, fired at Julio Nalundasan, then representative-elect for the second district of Ilocos Norte, hitting him in the right side, the bullet having entered vital internal organs and injuring them, which wounds cause the instant death of said Julio Nalundasan. "Contrary to law, with the aggravating circumstances of nocturnity and the perpetration of the crime in the home of the deceased. "Laoag, Ilocos Norte, December 7, 1938. [Sgd.] "HIGINO B. MACADAEG "Provincial Fiscal for Laguna with special designation in the

Province of Ilocos Norte "Witnesses: "DR. RAMON RABAGO, c/o Phil. Army Cotabato, Cotabato "DR. DOMINGO SAMONTE, c/o Dept. del Interior Manila, and others" The Information was submitted to the respondent judge who, after examining prosecution witnesses, Calixto Aguinaldo and Valentin Rubio, on that very day issued the warrant for the arrest of the accused, stating that from the testimony of these witnesses, it was evident that the crime charged had been committed and that the accused had probably committed it. Being of the opinion that the crime charged was penalized with a capital punishment, and that the accused were not entitled to bail, the Court likewise decreed that the accused remain in detention. At the investigation conducted by the respondent judge, where Calixto Aguinaldo and Valentin Rubio testified, the accused were not present, and the whole proceeding took place in their absence. On December 8, 1938, Mariano Marcos moved to be admitted to bail. The motion was set for hearing that same afternoon, which was orally opposed by the fiscal, and without either party adducing any evidence, the motion was submitted. Pio Marcos, Ferdinand Marcos, and Quirino Lizardo on the 12th also moved to be admitted to bail. This motion was set for hearing on the 20th of December, 1938, but at the request of the accused, who wanted to file a supplementary motion, the hearing was postponed till the following day. On December 21st, the four accused filed the supplementary motion, attaching thereto their sworn statements marked A, B, C and D. Here as in the original motion the accused urgently prayed that they be released on bail, and in their sworn statements Mariano Marcos, Ferdinand Marcos and Quirino Lizardo declared that the testimony of Calixto Aguinaldo and Valentin Rubio accusing them of murder was false, and that they were innocent. On December 21st these motions came up for hearing before the respondent judge, Fiscal Macadaeg appearing for the prosecution, and Attorney Vicente J. Francisco for the defense. The latter asked that the prosecution present its evidence to show that the accused fell within the exception of Section 1, Paragraph 16, Article III of the Constitution, and Section 63 of General Orders No. 58, that is, that they were accused of a capital offense, that the proof of guilt was evident and the presumption of guilt strong. The fiscal refused to do so and contended that under the law the prosecution was not bound to adduce such evidence, that the judge might take into account that adduced during the investigation he had made, and that at any rate it was the defense that was bound to establish the right of the accused to bail. The respondent judge sustained the fiscal and the hearing came to a close without either party adducing any evidence. The motions having thus been submitted, the respondent judge on December 29, 1938 issued an order denying them and ruling that the accused Mariano Marcos, Quirino Lizardo and Pio Marcos were not entitled to bail because they were charged with a capital offense, the proof against them was evident, and the presumption of guilt strong. Prior to this date they had asked for a preliminary investigation. The motion to that effect was denied on the ground that the investigation conducted by the respondent judge before issuing the warrant of arrest was in the nature of a preliminary investigation. Motion for reconsideration was filed, and on December 27, 1938 this motion was likewise denied, but the judge, in the same order, admitted Ferdinand Marcos to bail on the ground that he was under 18 when the crime was committed, that he was a remarkably bright student of the College of Law in the University of the Philippines, that he would finish his studies the following March, and that he had given assurances, together with his lawyers, that he would not leave the Philippines.

As may be seen, the question of law raised by this petition is whether the accused Mariano Marcos, Pio Marcos, and Quirino Lizardo are entitled to be admitted to bail at this stage of the criminal proceedings, that is, before conviction. Section 1, paragraph 16, Article III of the Constitution, provides: "[16] All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required." Section 63 of General Orders No. 58, provides: "Sec. 63. All prisoners shall be bailable before conviction, except those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt i5 strong." Section 63 of General Orders No. 58, does not run counter to Section 1, Paragraph 16, Article III of the Constitution, since in this jurisdiction, every accused person is bailable before conviction, unless charged with a capital offense, when proof of guilt is evident and presumption of guilt strong [U. S. vs. Babasa, 19 Phil., 198; Montalbo vs. Santamaria, 54 Phil., 955]. When the crime charged is a capital offense, admission to bail lies within the discretion of the Court, and depends upon whether the proof is evident and the presumption of guilt strong [Montalbo vs. Santamaria, supra]. When the motions filed by the three accused came up for trial, counsel asked that the prosecution adduce its evidence to show whether they fell within the exception, and whether or not they were entitled to bail; but the Court upheld the prosecution and declared that the burden of proof was on the accused to show that they were entitled to bail. The controversy thus gave rise to the legal question as to which side bears the burden of proof in such cases. Section 66 of General Orders No. 58, provides: "Sec. 66. When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the promotor fiscal." It will be seen that this Section provides for a hearing of the application for bail, but it says nothing about the party bound to prove the right to bail. The prosecution contends that the burden of proof lies on the accused because they must prove their affirmative allegation that they are entitled to bail and because the filing of the information sets up the presumption of their guilt. The defense contends that since it is the exception to the rule that the accused are not entitled to bail, it is the prosecution, and not the accused, which is bound to prove it. In the States of the Union, there are two tendencies or theories touching the onus probandi where there is a petition to be admitted to bail before conviction of the accused. In some States it has been held that the burden of proof lies on the accused who asked to be admitted to bail because the filing of the indictment raises the presumption of guilt and that the proof against the accused is evident or clear [8. C. J. S., sec. 34, p. 61; McAdams vs. State, 147 N. E., .64; 196 Ind., 184; Ex parte Cooper, 45 P. (2d), 584). In Shaw vs. State (47 S. W. [2d], 92; 164 Tenn., 192], the Supreme Court of Tennessee held that in the absence of proof by the petitioner that he is bailable for a capital offense, the indictment raises the presumption of guilt required by the constitutional provision regarding bail. In State vs. Kutcher [129 A., 632; 3 N. J., Misc., 636], the Supreme Court of New Jersey held that although the indictment does not raise the presumption of guilt sufficient for the trial on the merits, it does raise that presumption for all intermediate proceedings, such as a petition to be admitted to bail. In State vs. Lowe [86 So., 707; 204 Ala., 288], the Supreme Court of the State held that a person under an indictment for a capital offense is presumed guilty to the extent of not being entitled to release on bail. As may be seen, the fundamental reason the courts had in holding that the accused must prove his right to bail is the presumption of guilt arising from the filing of the indictment. It has

further been said that the filing of the indictment likewise destroys the presumption of innocence in favor of the accused. If this theory has some persuasive force, it is due to the procedural system followed in nearly all the States of the Union for securing the indictment. There the district attorney gathers the evidence for the prosecution and presents it before the Grand Jury, which, after examining it, deliberates upon whether or not to present the indictment. This indictment is presented only after the jury is morally convinced that the crime has been committed and that the accused is guilty. In this jurisdiction there is no jury, and the evidence for the prosecution is gathered and organized by the fiscal, who later files the information. Undoubtedly the legal requirement that the indictment be presented by the jury aims at surrounding the citizen with greater guarantees before being molested with his arrest, preliminary investigation, trial, and the consequent expenses of his defense. This guarantee in favor of the citizen does not exist in our jurisdiction, because we have no jury, for which reason We incline towards the second theory that the filing of the Information does not raise the presumption of guilt or destroy the presumption of the defendant's innocence provided for in Section 57 of General Orders No. 58. We, therefore, hold that when a person accused of a capital offense asks to be admitted to bail before conviction, the burden of proof lies, not on him, but on the prosecution to show that he is not bailable. It is argued that the respondent judge, before issuing the warrant for the arrest of the accused, examined the two witnesses for the prosecution presented by the fiscal, and that their testimony raised the presumption of the defendants' guilt and supplied the further requirement that proof of guilt must be evident. We cannot give Our assent to this contention. It ought not to be forgotten that such testimony was taken in the absence of the accused, and that the latter had no opportunity to see the witnesses testify or to cross-examine them. We are not unmindful of the fact that in People vs. Solon [47 Phil., 443), and in Payao vs. Lesaca (63 Phil., 210], We said that when the investigation of a criminal case is conducted by a judge of first instance, it includes both the summary investigation spoken of in Act No. 194, as amended by Acts Nos. 1450 and 1627, and the preliminary investigation referred to in Section 13 of General Orders No. 58; and We are aware of the contention of the prosecution that applying the doctrine laid down in those two cases, the evidence adduced before the respondent judge could be used against the accused and in fact established the presumption of guilt. But it must be borne in mind that the hearing required by Section 66 of General Orders No. 58, is essentially different from the preliminary investigation to which every person is entitled who is accused of a crime triable before the Court of First Instance, and that if the prosecution had intended the summary investigation conducted by the respondent judge to be a preliminary investigation, its duty was to summon the accused and adduce its evidence in their presence. Other reasons preventing the consideration of such evidence against the accused are: that the fiscal did not reproduce or offer it at the hearing of the petitions for bail; and that in the sworn statements which the accused attached to their supplementary motion, they denied the imputation of guilt, and rebutted the testimony of Calixto Aguinaldo and Valentin Rubio, which they described as false and improbable. In these circumstances it was the duty of the respondent judge, to require the fiscal to adduce his evidence in order to show that the crime charged was capital that the proof was evident, and the presumption of guilt strong. Although the petition filed is entitled certiorari and prohibition, We consider that the proper relief is only the first, since there is no allegation or ground for invoking the second. Certiorari lies in this case because the respondent judge exceeded, as We have pointed out, the discretion conferred upon him by law [section 217, Code of Civil Procedure; De Castro and Morales vs. Justice of the Peace of Bocaue, 33 Phil., 595; Valdez vs. Querubin, 37 Phil., 77ds; Leung Ben

vs. O'Brien, 38 Phil., 182; Salvador Campos y Cia. vs. Del Rosario, 41 Phil., 45; Larrobis vs. Wislizenus and Smith, Bell & Co., 42 Phil., 401; Encarnacion and Navarro vs. Sheriff of Rizal, 63 Phil., 467; Carreon vs. Buyson Lampa, 63 Phil., 449]. a Wherefore, let the Writ of Certiorari issue and the Order of December 29, 1938 denying bail to the accused Mariano Marcos, Pio Marcos, and Quirino Lizardo be set aside. The respondent judge, or whoever acts in his stead, shall set the petitions filed by these three accused regarding bail for hearing, at which the fiscal should prove that they fall within the exception and are therefore not entitled to bail because they are charged with a capital offense, the proof is evident, and the presumption of their guilt is strong. The evidence thus adduced may be rebutted by the accused with other evidence to show their right. Without special award of costs. So ordered. 3. Villasenor v Abano The questions presented in this an original petition for certiorari, took root in Criminal Case 2299 (Court of First Instance of Marinduque) for the murder of Boac police sergeant Alfonso Madla, lodged by the Provincial Fiscal against petitioner.1 Petitioner, defendant below, was, on motion, admitted to a P60,000.00-bail. The amount of the bond was, on verbal representation of petitioner's wife, reduced to P40,000.00. On May 29, 1964, petitioner posted a property bond, was set at provisional liberty. Before arraignment on the murder charge, however, respondent Provincial Fiscal amended the information. This time he accused petitioner with "Direct Assault Upon an Agent of a Person in Authority with Murder." On August 7, 1964, respondent judge sua sponte cancelled petitioner's bond, ordered his immediate arrest. On petitioner's motion. to reconsider, respondent judge, on September 9, 1964, after hearing, resolved to admit him to bail provided he puts up a cash bond of P60,000.00. On September 15, 1964, on petitioner's motion that the original bond previously given be reinstated, respondent judge resolved to fix "the bond anew in real property in the amount of P60,000.00, but to be posted only by residents of the province of Marinduque actually staying therein" with properties which "must be in the possession and ownership of said residents for five years." On October 1, 1964, petitioner came to this Court on certiorari, with a prayer for preliminary injunction. He seeks to set aside respondent judge's orders of August 7, September 9 and September 15, 1964; to reinstate the bail bond theretofore approved by respondent judge on May 29, 1964, and for other reliefs. He charges respondent judge having acted without any or in excess of his jurisdiction and with grave abuse of discretion, and with violation of the Constitution and the Rules of Court in issuing the disputed orders. On October 3, 1964, this Court issued a writ of preliminary injunction upon a P1,000.00-bond. We restrained respondents from enforcing the orders in question and from further proceeding with the case. On November 5, 1965, we modified the writ of preliminary injunction; we lifted the portion thereof which prohibited continuation of the proceedings in the case below, Criminal Case 2299, to avoid delay in the prosecution thereof. Upon respondents' separate returns, the case was submitted without argument. 1. We need not pass upon respondent judge's orders of August 7, 1964 cancelling petitioner's bail, and September 9, 1964 admitting the accused anew to cash bail. The August 7, 1964 order was superseded by that of September 9, 1964. This, in turn, was replaced by the last order of September 15, 1964, by virtue of which the cash bond required was reverted back to

property bond. The two orders of August 7 and September 9, 1964 thus became functus officio.2 A rule of ancient respectability is that it is not the function of a court of justice to furnish answers to purposeless questions that no longer exist.3 Our inquiry accordingly narrows down to the three-pronged attack levelled by petitioner against the September 15, 1964 order of respondent judge. We propose to discuss them in seriatim. 2. Forefront amongst the three problems is this: Does the P60,000.00-bond fixed by respondent judge transgress the constitutional injunction that "(e)xcessive bail shall not be required"?4 Petitioner's submission is that he is a mere government employee, earning but a monthly salary of P210.00, and the sole breadwinner of a family of five. To be read with the constitutional precept just adverted to is Section 12, Rule 114, Rules of Court, which provides that "the court may, upon good cause shown, either increase or reduce the amount" of the bail, and that "defendant may be committed to custody unless he gives bail in the increased amount he is called upon to furnish." Along with the court's power to grant bail in bailable cases is its discretion to fix the amount thereof, 5 and, as stated, to increase or reduce the same.6 The question of whether bail is excessive "lays with the court to determine." 7 In the matter of bail fixing, courts perforce are to be guided at all times by the purpose for which bail is required. The definition of bail in Section 1, Rule 114, Rules of Court, gives this purpose "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." 8 And, in amplification thereof, Section 2 of the same rule states that the condition of the bail is that "defendant shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial, and after conviction, if the case is appealed to the Court of First Instance upon application supported by an undertaking or bail, that he will, surrender himself in execution of such judgment as the appellate court may render, or that, in case cause, is to be tried anew or remanded for a new trial, he will appear in the court to which it may be remanded and submit himself to the orders and processes thereof." Expressions in varying, language spell out in a general way the principles governing bail fixing. One is that the amount should be high enough to assure the presence of defendant when required but no higher than is reasonably calculated to fulfill this purpose.9 Another is that "the good of the public as well as the rights of the accused,"10 and "the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused",11 should all be balanced in one equation. We are not to consider solely the inability of a defendant to secure bail in a certain amount. This circumstance by itself does not make the amount excessive. 12 For, where an accused has no means of his own, no one to bail him out, or none to turn to for premium payments, any amount fixed no matter how small would fall into the category of excessive bail; and, he "would be entitled to be discharged on his recognizance." 13 So it is, that experience has brought forth certain guidelines in bail fixing, which may be summarized as follows: (1) ability of the accused to give bail; (2) nature of the offense; (3) Penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases.14 But, at bottom, in bail fixing, "the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of his flight to

avoid punishment." 15 Of importance then is the possible penalty that may be meted. Of course penalty depends to a great extent upon the gravity of offense. Here petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. A complex crime, it may call for the imposition of the capital punishment. Then, Circular 47 dated July 5, 1946 of the Department of Justice, reiterated in Circular 48 of July 18, 1963, directed prosecuting attorney's to recommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium period of the penalty prescribed for the offense charged, unless circumstances warrant a higher penalty. The reasonableness of this circular has already received this Court's imprimatur in one case.16 We are unprepared to downgrade this method of computation, what with a compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent judge fixed petitioner's bail at P60,000.00. 3. Exacting serious consideration is that portion of the disputed order of September 15, 1964, where respondent judge requires of the property bond be posted only by "residents of the province of Marinduque actually staying therein." This question is of first impression. The drive of petitioner's argument is that this condition collides with Section 9, Rule 114, Rules of Court, which in part recites: Sec. 9. Qualification of sureties. The necessary qualifications of sureties to a bail bond shall be as follows: (a) Each of them must be a resident householder or freeholder within the Philippines. xxx xxx xxx We read this statute to mean that the directive that bondsmen be resident householders or freeholders in the Philippines, is but a minimum requirement. Reason for this is that bondsmen in criminal cases, residing outside of the Philippines, are not within the reach of the processes of its courts. The provision under consideration, however, makes no attempt to cover the whole field of what is necessary for a bondsman before he is allowed to make bonds in the various courts;" nor does it "attempt to take away the inherent right of the court to properly administer its affairs."17 Residence within the country is not the only thing that could be required by the courts; it is not intended to tie up the hands of a judge to approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated "as cumulative, rather than exclusive, of the inherent power" of the courts to determine whether bail proffered should be accepted. 18 For, in principle, a court has broad powers essential to its judicial function.19 We look in retrospect at the situation confronting respondent judge. What prompted him to require as condition that petitioner's bondsmen be residents of the province of Marinduque actually staying therein? In his return to the petition before this Court, respondent judge reasons out that it has been his experience that "it is hard to send notices to people outside the province." He explains that the usual procedure of his clerk of court is to send notices by registered mail accompanied by return cards; that when trial comes, the return cards in many instances have not yet been received in court; that when the parties fail to appear; there is no way of knowing whether the notices have been duly received; that he cannot order the confiscation of the bond and the arrest of the accused, because he is not sure whether the bondsmen have been duly notified; that sending telegrams to people outside the province is costly, and the court cannot afford to incur much expenses. The posture taken by respondent judge does not offend the good sense of justice. Bail is given to secure appearance of the accused. If bondsmen reside in far away places, even if within the

Philippines, the purpose of bail may be frustrated. There is the insufficiency of the mails as an effective means of communication. And then, there is the problem of complying with the constitutional mandate of speedy trial. If notice to sureties is not served, no trial can be had. For sureties, in legal contemplation, are defendant's mancupators. In the circumstances here obtaining, it would not seem unfair if the judge should require, as he did, that sureties be so situated that court processes could reach them on time. Because, by both the Constitution and the law, sureties should be sufficient. 20 And, sureties are deemed sufficient not only when they are of sufficient financial ability. They must also be "of sufficient vigilance to secure the appearance and prevent the absconding of the accused."21 They cannot be said to be of sufficient vigilance to secure defendant's appearance whenever required, if the court should experience difficulty in communicating with them. Here respondent judge only wanted to make sure that when the proper time comes for the court to order the sureties to produce the person of defendant, no undue delay will be incurred. Weighing as heavily against petitioner's case is the fact that a reading of his petition fails of an averment that the requisite exacted that bondsmen be residents of and actually staying in Marinduque would cause him prejudice. The burden of his argument solely that still a condition runs counter to the rules of court. He did not even say that he cannot secure such sureties. On the contrary, suggestion there is in record that he is a former agent of the governor of Marinduque. Implicit in all these is that if error there was in the disputed order of September 15, 1964, petitioner has not shown that it was prejudicial error calling for correction. 22 The situation here presented does not warrant substitution of our judgement for that of our judgment for that of respondent judge's. We are not called upon to strike down respondent judge's order on this point as an abuse of discretion. 4. Also assailed as beyond the power of respondent judge is the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." Respondent judge, in his return, relies on Circular 2, dated January 23, 1964, of the Honorable, the Secretary of Justice, addressed, among others, to Judges of First Instance. That circular recites that it had been brought to the attention of the Department of Justice that in certain provinces, unscrupulous persons who are spurious landowners, have been accepted as sureties. The Secretary then suggested that "(i)t may be a good policy not to accept as bail bonds real properties not covered by certificate of title unless they have been declared for taxation purposes in favor of the person offering them as bond for at least five (5) years." Basically, reason is with this requirement. Its purpose, so the circular states, is to "prevent the commission of frauds in connection with the posting of personal bail bonds and to protect the interests of the Government." Really, if the bondsman is not the owner, bail fails of its purpose, prejudice to the government sets in.1awphl.nt We note, however, that the order of September 15, 1964 spoke of properties in general. It did not exclude properties registered under the Torrens system. A Torrens title is indefeasible. Failure of specificness on the part of respondent judge then could have been a case of oversight. To obviate misunderstanding, we take it upon ourselves to clarify that order. We do say now that the order of September 15, 1964 is to be understood as excluding properties covered by Torrens titles from the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." 5. In the end we say that respondent judge's order of September 15, 1964, as thus clarified, is here confirmed considering the overall environmental circumstances. We are not to be understood as laying down here specifics in bail fixing, bail approval or bail denial. Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however,

that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. With the observations heretofore adverted to, we vote to dismiss the petition for certiorari, and to dissolve the writ of preliminary injunction issued herein. Costs against petitioner. So ordered. [In the determination of the amount of bail the following factors are to be considered: Ability of the accused to give bail; Nature of the offense; Penalty for the offense charged; Character and reputation of the accused; Health of the accused; Character and strength of the evidence; Probability of the accused appearing in trial. Forfeiture of the other bonds; Whether the accused was a fugitive from justice when arrested; and If the accused is under bond for appearance at trial in other cases.] 5. People v IAC This is a petition for review on certiorari of the decision of respondent Intermediate Appellate Court (IAC) now Court of Appeals (CA), in AC-G.R. No. SP-01320-22 promulgated January 24, 1984, granting the petition for bail of accused Angelito Alivia y Abalos and nullifying the Orders of the trial court, dated February 23, 1983 and May 13, 1983 in Criminal Cases Nos. 1272-74, entitled People of the Philippines vs. Angelito Alivia y Abalos. Said orders of the trial court denied accused's application for bail holding that the accused Angelito Alivia is charged with three (3) capital offenses, the evidence of guilt of which, in each case, is strong. Accused Angelito Alivia y Abalos was charged before the then CFI of Isabela with the crimes of (1) assault upon an agent of person in authority with murder with the use of illegally possessed firearm, with respect to the killing of Lt. Cesar Rumbaoa (Crim. Case No. 1272), (2) assault upon an agent of person in authority with murder with use of illegally possessed firearm (Crim. Case No. 1274) and (3) murder of Atty. Norberto Maramba with the use of illegally Possessed firearm, (Crim. Case No. 1273). The trial court ordered the consolidation of the three (3) criminal cases since they arose from the same incident. The Provincial Fiscal recommended no bail for the accused in the three aforementioned cases. Accused filed an omnibus motion praying among other things that he be allowed bail contending that the evidence of his guilt is not strong, but said motion was denied by the trial court. Upon denial of his Motion for Reconsideration, accused filed with the IAC a petition for certiorari questioning the decision of the trial court on his motion for bail. After considering the records of the criminal cases which were transmitted to it from the trial court, the IAC promulgated a decision granting petitioner bail and nullifying the Orders of the trial court dated February 23, 1983 and May 13, 1983 and fixing the amount of bail at Eighty Thousand Pesos (P50,000.00). After denial of petitioner's motion for reconsideration, the present petition was filed, The facts as found by the trial court, which facts were adopted by respondent IAC, 1 are as follows: At the recently concluded barangay elections for barangay Sarangay, Cabatuan, Isabela, two candidates ran for the position of Barangay Captain thereat, namely accused Angelito Alivia and one Antonio Bagauisan. Herein accused lost in that election, but he filed with the Municipal Circuit Court of Cabatuan, an election protest. Antonio Bagauisan was duly proclaimed and he

assumed office accordingly. The late former Municipal Judge of Cabatuan, Atty. Norberto Maramba (Criminal Case No. 1273) was counsel for the protestee. (tsn., pp. 27-28, November 16, 1982). The hearing of the election protest was set in the morning of June 4, 1982, but was postponed. After which, at about 10:00 o'clock that same morning, the late Atty. Maramba invited witness Virgilio Yanuaria, the late Police Lt. Cesar Rumbaoa (Criminal Case No. 1272), Antonio Bagauisan and others to play bowling/billiards at the Cabatuan Recreation Center. They played up to 2:00 o'clock in the afternoon of the same day with the bet that the loser will pay the beer they will order. (tsn., pp. 28-29, Ibid). Later, the late Atty. Maramba, Police Lt. Rumbaoa and witness Virgilio Yanuaria (Antonio Bagauisan did not join them) proceeded to the Azarcon Restaurant at the public market, Cabatuan, Isabela, for lunch. They occupied round table No. 2 (see sketch). The late Police Lt. Rumbaoa was seated on chair No. A, facing west, the late Atty. Maramba, on chair No. B, facing south and witness Virgilio Yanuaria in chair No. C, facing east. They ordered lunch and three (3) bottles of beer, but Atty. Maramba did not drink, because he joined the group of accused Angelito Alivia. (tsn., pp. 20, 29- 34, Ibid) It appears that the group of the accused Angelito Alivia arrived at the Azarcon Restaurant much earlier, and those members of the group are (1) Angelito Alivia, accused herein; (2) Municipal Judge Estanislao Cudal; (3) Feliciano Gaspar; (4) Pat. Elpidio Sagun; (5) Pat. Danilo Rosario; (6) Engr. Charlie Martin; (7-8) a newly married couple, not Identified. The late Patrolman Elpidio Sagun and witness Pat. Danilo del Rosario also went to the Azarcon Restaurant to buy pansit noodles, but were invited by the accused to join them in their group while drinking beer with chaser (pullutan).lwphl@it Accused Angelito Alivia told Pat. del Rosario to drop by his house and get ammunition for pistol Cal. .38 and Pat. Elpidio Sagun for the armalite magazine. (tsn., pp. 88- 93, November 17, 1982). The relative positions and sitting arrangements of the two groups as found in the ocular inspection conducted in the morning of November 17, 1982, at the Azarcon Restaurant, Cabatuan are the following (pp. 130-131, record, Crim. Case No. 1272) The group of accused Angelito Alivia was the first to arrive at the Azarcon Restaurant, and this group joined two small square tables, Identified as square tables Nos. 5 and 6, to form a rectangle. There are eight (8) of them, namely: (1), accused Angelito Alivia, who seated himself on a stool marked (AA) north of square table No. 5; (2) Pat. Danilo Rosario, was seated on a stool marked (DR) left of accused Alivia, who was facing south, square table No. 5; (3) a man, unknown, occupied a stool marked (UK); (4) further left, by Feliciano Gaspar, occupied a stool marked (EG); (5) exactly opposite the accused, was seated Municipal Judge Estanislao Cudal marked (EC) on square table No. 6; (6) on his left, was seated the late Pat. Elpidio Sagun, on a stool marked (ES) in square table No. 6; (7) left of Elpidio Sagun, was seated, Engr. Charlie Martin, marked (CM) on table No. 6, and (8) on his left, was the woman, unknown, on square table No. 5, (tsn., pp. 24- 29 November 17, 1982). The three member group of the late Atty. Maramba, who arrived later, occupied round table No. 2, namely: (l) the late Police Lt. Cesar Rumbaoa, facing west, occupied chair A; (2) the late Atty. Maramba, facing south, occupied chair B; and (3) witness Virgilio Yanuaria, facing east, occupied chair C. (tsn, pp. 22-23, November 17, 1982). The distance from chair B, occupied by the late Atty. Maramba, in round table No. 2, to the tip of square table No. 6, where Judge Cudal was seated is 90 centimeters, and the distance from the seat of accused Angelito Alivia, north of square table No. 5, to the stool of Judge Cudal,

which was later occupied by the late Atty. Maramba is around 189 centimeters. (tsn., pp. 1921, Ibid) Upon arrival at the Azarcon restaurant, the late Atty. Maramba, engaged Municipal Judge Estanislao Cudal in a conversation on topics, among which was about the barangay election. Thereafter, Judge Cudal and Feliciano Gaspar left and proceeded to the municipal building. When Judge Cudal and Gaspar left, the late Atty. Maramba seated himself on the stool formerly occupied by Judge Cudal and engaged the accused Angelito Alivia who was seated opposite north of square table No. 5, at a distance of 189 centimeters facing each other, in a conversation on matters the witness can not remember. (tsn., pp. 30-31, November 17, 1982; tsn., pp. 94- 97, November 17, 1982) Meanwhile, Pat. del Rosario noticed accused Angelito Alivia go out from the Azarcon Restaurant thru the main door (No. 1) towards the west of the restaurant, where his car was parked three (3) meters from the main door, east (west) side of the restaurant. (Tsn., pp- 98100, November 17, 1982). Later, Angelito Alivia returned to his former place. In a little while, Patrolman Danilo del Rosario stood up and went to the municipal building, while the late Patrolman Elpidio Sagun remained inside the restaurant. (tsn., pp. 103-104, November 17, 1982). The lunch ordered by the group of the late Atty. Maramba being ready, the late Police Lt. Cesar Rumbaoa called for Atty. Maramba to join them and eat ("kakain na tayo"). Hence, the late Atty. Maramba stood up from where he was then seated with the group of accused Angelito Alivia. However, he was not able to reach round table No. 2 to eat, because he was suddenly shot on the chest (Dr. Angobung) by accused Angelito Alivia using a firearm Identified as Llama Automatic Pistol Super 38, SN-532937 (Exh., "K") causing him to fall the cemented floor. ( t.s.n., pp. 32-34, November 17, 1982) While in that lying position, again he was shot on the neck, Both gunshot wounds caused his instantaneous death. Before the second gun report when Virgilio Yanuaria was about to run, the late Patrolman Elpidio Sagun who was on his left pushed Virgilio Yanuaria to save him using his right hand pressing the left shoulder of Yanuaria. After which, Yanuaria walked crouching passing thru the inside door (No. 3) and went out thru door No. 2, and proceeded to the municipal building to report the incident, after hearing successive gun reports, the number he cannot remember. (tsn., pp. 20-22, 34-35, November 17, 1982) Witness Virgilio Yanuaria reported the incident to Cpl. Jose Pascual in the presence of Pat. Danilo del Rosario saying "Lito Alivia shot Atty. Maramba." Immediately, four policemen, namely, Pat. Danilo del Rosario, Pat, Jose Pascual, Pat. Jose Angangan and another one, went to the crime scene. They were later followed by Pat. Celestino Apaya and Pat. Ricardo Pedro. Thereat, they saw the body of the late Police Lt. Rumbaoa (dead already) at the main door (door No. 1) lying face upward, and inside they saw the body of the late Atty. Maramba (dead already) face downward and that of the late Pat. Sagun (still breathing) face upward (tsn., pp. 45-49), November 17, 1982) Meanwhile, Dr. Benedicto Acosta, the incumbent Municipal Mayor of Cabatuan, arrived from Ilagan, at about 3:10, afternoon of June 4, 1982. In front of his business residence at Centro, Cabatuan, he was informed by Dr. Rolando Dacuycuy, a brother-in-law of the accused, about the shooting incident. Because he was then riding on his car, he invited him to see the incident, but Dr. Dacuycuy did not get inside the restaurant, while Mayor Acosta went inside to investigate the matter in his capacity as Chief Executive of the town. (tsn., pp. 237-238, September 21, 1982)

Inside the restaurant, he saw the owner of the restaurant Mrs. Azarcon, two maids and two dead bodies, Identified as those of the late Atty. Maramba and Police Lt. Rumbaoa. He did not see the body of the late Pat. Elpidio Sagun because he was informed that he was then still alive and was rushed to the emergency hospital in Cauayan but died at the junction at Luna, Isabela. In his ocular inspection of the crime scene, he picked up five (5) empty shells (Exhs. "K-2", K- 3", "K.4", "K-5" and "K-6"), the four inside the restaurant, while the other one was recovered outside just in front of the main door. He likewise recovered inside the restaurant one (1) deformed lead/slug (Exh. "K-8") and two (2) lead cores (Exhs. "K-9" and "K10").lwphl@it He asked the owner Mrs. Delia Azarcon who shot and kill the late Atty. Maramba and Police Lt. Cesar Rumbaoa and she said it was Angelito Alivia who shot them. Being a doctor himself, he examined the two bodies and found that the late Atty. Maramba suffered two gunshot wounds, one at the left occipital region on the head and one at the interior surface of the scapula (chest) with a bore at his T-shirt. In the case of the late Police Lt. Cesar Rumbaoa, he suffered a gunshot wound at the left maxilla surrounded by blackening discolorations and another wound at the left lateral surface, both of the neck and also a gunshot wound at the right lateral root of the neck. (tsn., pp. 238-250, Ibid) When Pat. Pedro Constancio arrived, Mayor Acosta directed him to call for a photographer and also Dr. Juan Rigor, Jr., the Rural Health Officer of Cabatuan. Photographer de la Cruz took the pictures and Dr. Rigor examined the cadavers of the two bodies. The pictures taken were developed and Mayor Acosta Identified the pictures of the late Police Lt. Cesar Rumbaoa, as Exhs. "P", "P-1", "P-2", and "P-3", appearing on Pages 35-36-A, record, in Criminal Case No. 1272. Similarly, pictures were taken of the dead body of the late Atty. Maramba, duly Identified by Mayor Acosta (Exh. "Q," p. 22, record, Crim. Case No. 1273). Later Mayor Acosta called for Pat. Miguel Orodio, INP, Investigator, Cabatuan, Isabela. lie also found inside the restaurant one, revolver, inside a tuck in holster. He likewise noticed three (3) bullet marks, one beside the fallen body of Atty. Maramba, another just beneath the head of Police Lt. Rumbaoa and the other at the left side wan of the restaurant. (tsn., pp. 250-274, Ibid) The empty shells and slugs were given to Cpl. Jose Pascual and the latter submitted them to the Police Investigator. These empty shells, cartridge and deformed slugs, together with the Llama automatic pistol Cal. 38 with magazine were later submitted to the NBI, Manila, for ballistic examination, which were examined by Feliciano S. Lunasco, NBI, Supervising Ballistician, and testified in Court that the empty shells, deformed slugs, cartridge and lead cores were fired from the same firearm (Exh. "K"). (tsn., pp. 285-288, September 21, 1982; tsn., pp. 203-210, December 15, 1982) Dr. Ruben Angobung, NBI, Medico Legal Officer, testified that he conducted the autopsy examination on the cadaver of the deceased Atty. Norberto Maramba, Police Lt. Cesar Rumbaoa and Pat. Elpidio Sagun upon request of their relatives. The cause of death of each of the three (3) victims was hemorrhage due to gun shot wounds. It was possible that deceased Atty. Maramba and Police Lt. Cesar Rumbaoa were likewise shot when they have already fallen on the cemented floor as evidenced by the, gunshot wounds on their heads. He found and marks on the head of Police Lt. Rumbaoa which shows that the assailant ' was shot at close range and the muzzle of the gun used was at distance of not more than 24 inches from the head. From the trajectory of the gunshot wounds on the head of the deceased Atty. Maramba and Police Lt. Cesar Rumbaoa, it was possible that the assailant was then at the back of said victims (Testimony of Dr. Angobung). (tsn., pp. 86-148, December 1, 1982) Immediately after the shooting, the accused Angelito Alivia, accompanied by his uncle and counsel de parte, Atty. Artemio Alivia, voluntarily surrendered to the Provincial Commander,

Col. Oscar M. Florendo, at the PC Headquarters, Calamagui, Ilagan, Isabela. The accused verbally admitted to Col. Florendo that he shot to death the late Atty. Maramba, Police Lt. Cesar Rumbaoa and Pat. Elpidio Sagun, at the Azarcon Restaurant, located at the public market, Cabatuan, Isabela. In the process, the accused surrendered the firearm, Llama automatic Pistol SN-532937 (Exh. "K") which he used in the killing of the three (3) victims, (tsn., pp. 158-167, December 15, 1982) In addition to this, the accused executed an extra-judicial confession (Exhs. "J", "J-1" and "J2"), taken by M/Sgt Severino Goday ,Jr., PC, in that same afternoon of June 4, 1982, at PC, Headquarters in the presence of his lawyer uncle. He freely and voluntarily admitted having shot to death Atty. Norberto Maramba at Centro, Cabatuan, Isabela, Police Lt. Cesar Rumbaoa and Pat. Elpidio Sagun, both of INP, Cabatuan, at around 2:00 o'lock P.M. of June 4, 1982, inside the Azarcon Restaurant, located inside the public Market of Cabatuan, Isabela with the use of Llama automatic pistol Cal. 38, SN-532937 (Exh. "K"). (Testimonies of Col. Oscar M. Florendo and M/Sgt. Severino Goday Jr., PC). (tsn., pp. 218-225, September 21, 1982). C. FACTUAL ANALYSIS Counsel for the defense admits that the offenses with which the accused was charged are capital offences, which carry the ;supreme penalty of death. Eyewitness Virgilio Yanuaria testified that the accused Angelito Alivia suddenly shot the late Atty. Norberto Maramba, when the latter stood up, to eat lunch upon call by the late Police Lt. Cesar Rumbaoa. The first gun shot wound was fatal and the victim Atty. Maramba fen to the cemented floor. There is evidence that the accused again shot the victim while lying down. Meanwhile, the late Pat. ElpidioSagun who was on his left side, bushed Virgilio Yanuaria on the shoulders to save him and the latter escaped crouching towards the inside door (door No. 3) and exited thru door No. 2, southern portion of the restaurant. He heard several gun reports thereafter, while he proceeded to the municipal building to report the incident to Cpl. Jose Pascual in the presence of Pat. Danilo del Rosario, both INP of Cabatuan, Isabela, and based on this report, police investigators repaired to the scene of the crime immediately thereafter. There is no eyewitness presented on the shooting of the other two victims, namely. the late Police Lt. Cesar Rumbaoa and the late Pat. Elpidio Sagun. However, there is evidence that said two victims were likewise shot by the accused Angelito Alivia. The cadavers were examined and the autopsy reports reveal that the cause of death of said two victims was hemorrhage due to gun shot wounds. The five (5) empty shells (Exhs. "K.2", "K-3", "K.4", "K.5", and "K-6") and the two lead cores (Exhs. "K-9" and "K-10"), an recovered at the crime scene (Azarcon restaurant), were subjected to ballistic examination at the NBI, Manila. Witness Feliciano Lunasco, NBI, Supervising Ballistician, Manila, testified that the empty shells, deformed slugs, cartridge and lead cores were fired from the same gun, Llama automatic pistol Cal. 38 (Exh. "K"). Mrs. Delia Azarcon, the owner of the restaurant, when interviewed by Mayor Benedicto Acosta who arrived at the restaurant upon being informed of the incident that same afternoon not long after the shooting, told the Mayor, that it was the accused Angelito Alivia who shot the three (3) victims, whose bodies lay prostrate on the cemented floor, There were three (3) bullet marks on the cemented floor, one beside the fallen body of the late Atty. Maramba, another just beneath the head of the late Police Lt. Rumbaoa, and the other at the left side wall of the restaurant. Pictures were taken of the cadavers of the late Atty. Maramba (Exh. "Q") and that of the late Police Lt. Rumbaoa (Exhs. "P", "P-1", "P-2" and "P-3", p. 2, and pp. 36-36-A, respectively, record, Crim. Case No. 1272).

To top it all, accused Angelito Alivia, duly assisted by his lawyer-uncle, immediately after the incident, left for Ilagan and voluntarily surrendered to Col. Oscar M. Florendo, Provincial Commander, PC, Ilagan In the process, accused surrendered the firearm used, Llama automatic pistol Cal. 38 (Exh. "k"), and orally admitted to Col. Florendo advised the accused in the presence of his lawyer to have his oral confession reduced in writing, which the accused and counsel agreed. M/Sgt. Severino Goday Jr., PC Investigator, was tasked to get the statement of the accused who, when called to testify in Court told the story that the extrajudicial confession (Exh. "J", p. 7, record, Crim. Case No. 1272) was freely and voluntarily given by the accused duly assisted by his counsel. There are present, two (2) mitigating circumstances which may be credited in favor of the accused, namely: (1) voluntary surrender and (2) drunkenness probably not habitual but at this stage of the proceedings as they relate to the legal incident in question, such circumstances may not sway to mitigate the question on bail in favor of the accused. Persuasively, said two mitigating circumstances may have great weight after trial on the merits. (pp. 10-20, Rollo) Notwithstanding said finding of facts, the IAC ruled that accused is entitled to bail in the amount of P80,000.00 thus nullifying the Orders of the trial court, dated January 23, 1983 and May 15, 1983. Hence, this petition with the following assigned alleged errors: I. Respondent lntermediate Appellate Court gravely erred in holding that the evidence of guilt of accused is not strong, contrary to the findings of the trial court. II. Respondent lntermediate Appellate Court gravely erred in holding that Lt. Cesar Rumbaoa and Pat. Elpidio Sagun were not in the official performance of their duties as peace officers at the time of the incident and III. Respondent Intermediate Appellate Court gravely erred in relying on the resolution in the case of"Montano vs. Ocampo" which is not controlling. (p. 21. rollo) The contentions of petitioner are well-taken. The crimes charged are clearly capital offenses as the phrase is defined in Sec. 5 Rule 114 of the Rules of Court. An offense is capital, if it may be punished by death under both the law prevailing at the time of its commission and that prevailing at the time of the application for bail, even if after conviction a penalty less than death imposed. In its assailed decision, respondent (IAC) concurred with the trial court that the charges against accused are capital offenses and that the evidence of guilt of the accused is strong. However, the respondent Court ruled that while the evidence clearly established that the petitioner 2 was responsible for the shooting of Atty. Maramba, Lt. Rumbaoa and Patrolman Sagun and he so admitted responsibility for their death in his confession" the crime is ostensibly that of homicide merely, not murder. The criterion to determine whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances. As pointed out by the petitioner in its memorandum, The rationale of the provision lies in the difficulty and impracticability of determining the nature of the offense on the basis of the penalty actually imposable. Otherwise, the test will require consideration not only of evidence showing commission of the crime but also evidence of the aggravating and mitigating circumstances. Thus, there has to be not only a complete trial, but the trial court must also already render a decision in the case. This defeats the purpose of bail, which is to entitle the accused to provisional liberty pending trial. 3 The posture taken by the respondent Court in granting bail to the accused and in disregarding the findings by the trial court of the guilt of the accused (respondent herein) is a clear deviation from Our ruling laid down in the case ofBolanos vs. dela Cruz, to wit:

Under the Constitution, all persons shall, before conviction, be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. It is the trial court which is tasked to determine whether or not the evidence of guilt is strong and it has determined the affirmative in this case after consideration of the evidence already presented by the prosecution, In the absence of Manifest abuse of discretion We are not prepared to substitute our judgment for that of the trial court.(Bolanos vs. Dela Cruz, supra) (Emphasis supplied) (p. 164, rollo) Anent the issue of whether or not the deceased Lt. Rumbaoa and Pat. Sagun were killed while in the performance of their duties, the evidence shows that while both were admittedly in civilian clothes during the incident in question they were in the performance of their duties as police officers when fired upon and killed by the bullets of the accused. As peace officers, their initial reaction to the shooting was to assert their authority in protecting and covering civilians from the indiscriminate firing by the accused. Accused instead suddenly and without warning, successively shot Lt. Rumbaoa and Pat. Sagun to death knowing fully well that they were peace officers. Although both were armed with their service guns, they were unable to offer resistance and put up a defense due to the suddenness and close succession of the shots. This is indicated by the fact that a revolver still tucked in its holster was found at the crime scene beside the bodies of the victims showing that one of the victims was unable to pull out his gun. The commission of the crimes charged was attended by treachery as established by the testimony of the eyewitness Virgilio Yanuaria to the shooting of Atty. Maramba and by strong evidence as to the treacherous shooting of the two peace officers. Virgilio Yanuaria testified that accused suddenly and without warning shot the deceased Atty. Norberto Maramba when the latter turned his back towards the accused and returned to his table to eat. Atty. Maramba was fatally hit on the back of his head and fell to the cement floor. Atty. Maramba did not sense any danger that he would be shot by the accused considering that he and the accused knew each other personally and that, as respondent admitted, there was no previous grudge or misunderstanding between him (accused) and Atty. Maramba. Successive shots hit the two peace officers who were caught by surprise as a result of which they died. The deceased had no inkling that the accused was armed and that he would be carried by passion to resort to violence considering his prominent stature in the locality. On these issues the trial court ruled: There is treachery although the shooting was frontal, when the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense (People vs. Cuadra, L-27973, October 23, 1978), and when there was a deliberate surprise attack upon an unarmed victim the killing is murder qualified by treachery (People ple vs. Alegria, L-40792, August 18, 1978), and furthermore, sudden, unexpected, without warning, and without giving the victim ,the opportunity to defend himself or repel the initial attack, the qualifying circumstance of treachery is evident and the crane committed is murder (People vs. Candado, L- 34089-90, August 9, 1979; People vs. Pay-an, L-39089-90, July 31, 1978). (p. 171, rollo) WHEREFORE, judgment is hereby rendered giving due course to the petition; the assailed decision of respondent IAC is hereby SET ASIDE and the orders of the lower court, denying the petition for bail are hereby REINSTATED. If the accused is out on bail, his bail bond is hereby cancelled and he is ordered committed to prison. This decision is immediately executory. SO ORDERED. 6. Manotoc vs CA

Facts: This is a consolidated case of members of the AFP who were charged with violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). The petitioners were questioning the conduct of the pre-trial investigation conducted where a motion to bail was filed but was denied. Petitioner applied for provisional liberty and preliminary injunction before the court which was granted. However De Villa refused to release petitioner for provisional liberty pending the resolution of the appeal they have taken before the court invoking that military officers are an exemption from the right to bail guaranteed by the Constitution. Decision was rendered reiterating the release for provisional liberty of petitioners with the court stating that there is a mistake in the presumption of respondents that bail does not apply among military men facing court martial proceeding. Respondents now appeal before the higher court. Issue: Whether or not military men are exempted from the Constitutional guarantee on the right to bail. Held: The SC ruled that the bail invoked by petitioners is not available in the military as an exception to the general rule embodied in the Bill of Rights. Thus the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. Justification to this rule involves the unique structure of the military and national security considerations which may result to damaging precedents that mutinous soldiers will be released on provisional liberty giving them the chance to continue their plot in overthrowing the government. Therefore the decision of the lower court granting bail to the petitioners was reversed. 7. Garcia vs Domingo The pivotal question in this petition for certiorari and prohibition, one which thus far has remained unresolved, is the meaning to be accorded the constitutional right to public trial. 1 More specifically, did respondent Judge commit a grave abuse of discretion in stigmatizing as violative of such a guarantee the holding of the trial of the other respondents 2 inside the chambers of city court Judge Gregorio Garcia named as the petitioner. 3 That was done in the order now impugned in this suit, although such a procedure had been agreed to beforehand by the other respondents as defendants, the hearings have been thus conducted on fourteen separate occasions without objection on their part, and without an iota of evidence to substantiate any claim as to any other person so minded being excluded from the premises. It is thus evident that what took place in the chambers of the city court judge was devoid of haste or intentional secrecy. For reasons to be more fully explained in the light of the facts ascertained the unique aspect of this case having arisen from what turned out to be an unseemly altercation, force likewise being employed, due to the mode in which the arrest of private petitioner for a traffic violation was sought to be effected by the two respondent policemen thus resulting in charges and counter-charges with eight criminal cases being tried jointly by city court Judge in the above manner we rule that there was no transgression of the right to a public trial, and grant the petition. It was alleged and admitted in the petition: "In Branch I the City Court of Manila presided over by petitioner Judge, there were commenced, by appropriate informations all dated January 16, 1968, eight (8) criminal actions against respondent Edgardo Calo, and Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case No. F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192, alsofor slight physical injuries; and (3) Criminal Case No. F109193, for maltreatment; b. Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197,

for maltreatment; (2) Criminal Case No. F-109196, for slight physical injuries; and (3) Criminal Case No. F-109198, for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2) Criminal Case No. F-109200, for slander." 4The above was followed by this recital: "The trial of the aforementioned cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March 30, 1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June 15, 1968, June 22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the fourteen (14) trial dates except March 4 and 18, and April 17, 1968 fell on a Saturday. This was arranged by the parties and the Court upon the insistence of respondents Calo and Carbonnel who, as police officers under suspension because of the cases, desired the same to be terminated as soon as possible and as there were many cases scheduled for trial on the usual criminal trial days (Monday, Wednesday and Friday), Saturday was agreed upon as the invariable trial day for said eight (8) criminal cases." 5 Also this: "The trial of the cases in question was held, with the conformity of the accused and their counsel, in the chambers of Judge Garcia." 6 Then came these allegations in the petition: "During all the fourteen (14) days of trial, spanning a period of several months (from March to August, 1968), the accused were at all times represented by their respective counsel, who acted not only in defense of their clients, butas prosecutors of the accusations filed at their clients' instance. There was only one (1) day when Atty. Consengco, representing respondent Calo and Carbonnel, was absent. This was on April 20, 1968. But at the insistence of Pat. Carbonnel, the trial proceeded, and said respondent cross-examined one of the witnesses presented by the adverse party. In any case, no pretense has been made by the respondents that this constituted an irregularity correctible on certiorari. At the conclusion of the hearings the accused, thru counsel, asked for and were granted time to submit memoranda. Respondents Calo and Carbonnel, thru counsel, Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35 citations of relevant portions of the transcript of stenographic notes in support of their prayer for exoneration, and conviction of petitioner Lorenzana in respect of their countercharges against the latter. It is worthy of note that up to this late date, said respondents Calo and Carbonnel had not objected to or pointed out any supposed irregularity in the proceedings thus far; the memorandum submitted in their behalf is confined to a discussion of the evidence adduced in, and the merits of the cases." 7 It was stated in the next petition: "The promulgation of judgment was first scheduled on September 23, 1968. This was postponed to September 28, 1968 at the instance of Atty. Rafael Consengco, as counsel respondents Calo and Carbonnel, and again to October 1, 1968 at 11 o'clock in the morning, this time at the instance of Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his appearance as counsel for respondents Calo and Carbonnel. The applications for postponement were not grounded upon any supposed defect or irregularity of the proceedings." 8 Mention was then made of when a petition for certiorari was filed with respondent Judge: "Early in the morning of October 1, 1968, Edgardo Calo and Simeon Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and prohibition, with application for preliminary prohibitory and mandatory injunction ... [alleging jurisdictional defects]." 9 Respondent Judge acting on such petition forthwith issued a restraining order thus causing the deferment of the promulgation of the judgment. After proceedings duly had, there was an order from him "declaring that 'the constitutional and statutory rights of the accused' had been violated, adversely affecting their 'right to a free and

impartial trial' [noting] 'that the trial of these cases lasting several weeks held exclusively in chambers and not in the court room open the public';" and ordering the city court Judge, now petitioner, "to desist from reading or causing to be read or promulgated the decisions he may have rendered already in the criminal cases (in question) ... pending in his Court, until further orders of this Court.'" 10 A motion for reconsideration proving unavailing, petition on January 28, 1969, elevated the matter to this Tribunal by means of the present suit for certiorari and prohibition. In its resolution of February 3, 1969, respondents were required to answer, with a preliminary injunction likewise being issued. As was to be expected the answer filed by respondent Judge on March 11, 1969 and that by the other respondents on March 19, 1969 did attempt to justify the validity of the finding that there was a failure to respect the right to a public trial of accused persons. Neither in such pleadings nor in the memorandum filed, although the diligence displayed by counsel was quite evident, was there any persuasive showing of a violation of constitutional guarantee of a public trial, the basic issue to be resolved. Rather it was the mode of approach followed by counsel Andres R. Narvasa for petitioners that did manifest a deeper understanding of its implications and ramifications. Accordingly, as previously stated, it is for us to grant the merits prayed for. 1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set forth at the outset, explicitly enumerated the right to a public trial to which an accused was entitled. So it is, as likewise made clear, under present dispensation. As a matter of fact, that was one constitutional provision that needed only a single, terse summation from the Chairman of the Committee on the Bill of Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was stressed by him: "Trial should also be public in order to offset any danger of conducting it in an illegal and unjust manner." 11 It would have been surprising if its proposed inclusion in the Bill of Rights had provoked any discussion, much less a debate. It was merely a reiteration what appeared in the Philippine Autonomy Act of 1916, popularly known as the Jones Law. 12 Earlier, such a right found expression in the Philippine Bill of 1902, likewise an organic act of the then government of this country as an unincorporated territory of the United States. 13 Historically as was pointed out by Justice Black, speaking for the United States Supreme Court in the leading case of In re Oliver: 14 "This nation's accepted practice of guaranteeing a public trial to an accused has its roots in [the] English common law heritage. 15 He then observed that the exact date of its origin is obscure, "but it likely evolved long before the settlement of the [United States] as an accompaniment of the ancient institution of jury trial." 16 It was then noted by him that there, "the guarantee to an accused of the right to a public trial appeared in a state constitution in 1776." 17 Later it was embodied in the Sixth Amendment of the Federal Constitution ratified in 1791. 18 He could conclude his historical survey "Today almost without exception every state by constitution, statute, or judicial decision, requires that all criminal trials be open to the public." 19 Such is the venerable, historical lineage of the right to a public trial. 2. The crucial question of the meaning to be attached this provision remains. The Constitution guarantees an accused the right to a public trial. What does it signify? Offhand it does seem fairly obvious that here is an instance where language is to be given a literal application. There is no ambiguity in the words employed. The trial must be public. It possesses that character when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. The thought that lies behind this safeguard is the belief that thereby the accused is afforded further protection, that

his trial is likely to be conducted with regularity and not tainted with any impropriety. It is not amiss to recall that Delegate Laurel in his terse summation the importance of this right singled out its being a deterrence to arbitrariness. It is thus understandable why such a right is deemed embraced in procedural due process. 20 Where a trial takes place, as is quite usual, in the courtroom and a calendar of what cases are to be heard is posted, no problem arises. It the usual course of events that individuals desirous of being present are free to do so. There is the well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency or public morals." 21 What did occasion difficulty in this suit was that for the convenience of the parties, and of the city court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that suffice to investigate the proceedings as violative of this right? The answer must be in the negative. There is no showing that the public was thereby excluded. It is to be admitted that the size of the room allotted the Judge would reduce the number of those who could be our present. Such a fact though is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some are smaller than others. Moreover, as admitted by Justice Black in his masterly In re Oliver opinion, it suffices to satisfy the requirement of a trial being public if the accused could "have his friends, relatives and counsel present, no matter with what offense he may be charged." 22 Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been held in chambers of the city court Judge, without objection on the part of respondent policemen. What was said by former Chief Justice Moran should erase any doubt as to the weight to be accorded, more appropriately the lack of weight, to any such objection raised. Thus: "In one case, the trial of the accused was held in Bilibid prison. The accused, invoking his right to a public trial, assigned the procedure thus taken as error. The Supreme Court held that as it affirmatively appears on the record that the accused offered no objection to the trial of his case in the place where it was held, his right is deemed waived." 23 The decision referred to, United States v. Mercado, 24 was handed down sixty-eight years ago in 1905. It does seem that the challenged order of respondent is far from being invulnerable. 3. That is all that need be said as to the obvious merit of this petition. One other objection to the conduct of the proceedings by the city court Judge may be briefly disposed of. Respondent Judge would seek to lend support to an order at war with obvious meaning of a constitutional provision by harping on the alleged abdication by an assistant fiscal of his control over the prosecution. Again here there was a failure to abide by settled law. If any party could complain at all, it is the People of the Philippines for whom the fiscal speaks and acts. The accused cannot in law be termed an offended party for such an alleged failure to comply with official duty. Moreover, even assuming that respondent policemen could be heard to raise such a grievance, respondent Judge ought to have been aware that thereby no jurisdictional defect was incurred by the city court Judge. As was so emphatically declared by Justice J.B.L. Reyes in Cariaga v. Justo-Guerrero: 25 "The case below was commenced and prosecuted without the intervention, mediation or participation of the fiscal or any of his deputies. This, notwithstanding, the jurisdiction of the court was not affected ... but the court should have cited the public prosecutor to intervene ... ." 26 4. There is much to be said of course for the concern displayed by respondent Judge to assure the reality as against the mere possibility of a trial being truly public. If it were otherwise, such a right could be reduced to a barren form of words. To the extent then that the conclusion reached by him was motivated by an apprehension that there was an evasion of a constitutional command, he certainly lived up to what is expected of a man of the robe. Further

reflection ought to have convinced him though that such a fear was unjustified. An objective appraisal of conditions in municipal or city courts would have gone far in dispelling such misgivings. The crowded daily calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude on procedural rules not being strictly adhered to all make for a less tense atmosphere. As a result the attendance of the general public is much more in evidence; nor is its presence unwelcome. When it is remembered further that the occupants of such courts are not chosen primarily for their legal acumen, but taken from that portion of the bar more considerably attuned to the pulse of public life, it is not to be rationally expected that an accused would be denied whatever solace and comfort may come from the knowledge that a judge, with the eyes of the alert court alert to his demeanor and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it change matters, just because, as did happen here, it was in the air-conditioned chambers of a city court judge rather than in the usual place that the trial took place. WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and declaring bereft of any legal force or effect the order of respondent Judge Felix Domingo November 29, 1968 for being issued with grave abuse of discretion. The writ of prohibition sought by petitioner is likewise granted, commanding respondent Judge or any one acting in his place to desist from any further action in Criminal Case No. 74830 of the Court of First Instance of Manila other than that of dismissing the same. The preliminary writ of injunction issued by this Court in its resolution of February 3, 1969 against the actuation of respondent Judge is made permanent. With costs against respondent policemen Edgardo Calo and Simeon Carbonnel [Facts: For the convenience of the parties the trial was held in the air conditioned chamber of the respondent judge Garcia. The complaint was under the premise that such act is in violation of the right to hold a public trial. Issue: Whether or not such proceeding of holding trial in the chamber of the judge in violation to the principle of right to a public trial. Held: It is not in violation of the right to a public trial since the trial was still open to public and there is no showing that the public was deprived to witness the trial proceeding.] 8. People vs San Diego [Bail application should be decided only after the prosecution has presented all its intended witnesses in a bail hearing] FACTS: The accused were charged for murder. The prosecution and the defense agreed that the motions for bail of the defendants would be considered in the course of the regular trial instead of in a summary proceeding. In the course of the regular trial, after the prosecution had presented eight witnesses, the trial court resolved the motions for bail granting the same despite the objection of the prosecution on the ground that it still had material witnesses to present. Bail was granted on the ground that the evidence of guilt was not strong. ISSUE: Whether the prosecution was deprived of procedural due process when trial court granted bail without allowing the prosecution to present their other witnesses? HELD: YES. Whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. The orders complained of dated

October 7, 9 and 12, 1968, having been issued in violation of procedural due process, must be considered null and void. The courts discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it would be uncontrolled and might be capricious or whimsical. Hence, the courts order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting bail to the five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. They only contain the courts conclusion that the evidence of guilt is not strong. Being thus defective in form and substance, the orders complained of cannot, also on this ground, be allowed to stand. 4. Section 10, Rule 114, 2000 Rules on Criminal Procedure Section 10. Corporate surety. Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. People v Agbayani Facts: The appellant was charged for raping his 14-year old daughter and was found guilty of the crime of rape. A motion for a new trial was filed before the court by the new counsel of the accused assailing the irregularities prejudicial to the substantial rights of the accused invoking the failure of the court to inform the accused of his right to choose his own counsel and the violation of the appellants right for a 2 day preparation for trial. Issue: Whether or not the failure of the record to disclose affirmatively that the trial judge advised the accused of the right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. eld: It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. Section 9 of Rule 116 of the Rules of Court provides that after a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. It is untenable to believe that the counsel who represented the appellant was not prepared during the trial as records showed he was able to cross-examine the complainant and there was no ground to claim he is incompetent to represent the appellant in court. The SC thereby affirmed the decision of the lower court. Marzan-Gelacio vs Judge Flores Juana Marzan-Gelacio filed two counts of rape against Emmanuel Artajos before RTC, Branch 20, Vigan, Ilocos Sur, wherein the respondent Judge Alipio Flores is the presider of the sala.

After going over the records of the case and the recommendation of the 1st Assistant Provincial Prosecutor Redentor Cardenas, the Judge concluded that the evidence of guilt was weak but made a finding of probable cause. Consequently he issued warrants of arrest with a recommendation of P200,000.00 bail bond in both cases. Gelacio through her private prosecutor filed an urgent motion to deny bail. On a later date, the accuseds counsel filed a petition to reduce bail bond to P100,000.00 for each case. After a series of exchange motions by the counsels of Gelacio and Artajos, and the Judges recalls of his previous orders, the Judge ordered the grant of the Motion to reduce bail by the accused. Gelacio through her counsel filed an Administrative Complaint against the Judge for Gross Ignorance of the Law and Evident Partiality for granting the bail without any hearing. ISSUE: Whether or not a Judge can grant an accuseds petition for bail without a hearing. HELD: No. A judge cannot grant a petition for bail without a trial. The procedural necessity of a hearing relative to the grant of bail cannot be dispensed with especially in this case where the accused is charged with a capital offense. Utmost diligence is required of trial judges in granting bail especially in cases where bail is not a matter of right. Certain procedures must be followed in order that the accused would be present during trial. As a responsible judge, respondent must not be swayed by the mere representations of the parties; instead, he should look into the real and hard facts of the case. To do away with the requisite bail hearing especially in those cases where the applicant is charged with a capital offense is to dispense with this time-tested safeguard against arbitrariness. It must always be remembered that imperative justice requires the proper observance of indispensable technicalities precisely designed to ensure it proper dispensation. In this regard, it needs be stressed that the grant or the denial of bail in capital offenses hinges on the issue of whether or not the evidence of guilt of the accused is strong and the determination of whether or not the evidence is strong is a matter of judicial discretion which remains with the judge.

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