EDUARDO TOLENTINO G.R. No.

157977
RODRIGUEZ and IMELDA
GENER RODRIGUEZ, Present:
Petitioners, PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
THE HONORABLE PRESIDING AZCUNA,
JUDGE OF THE REGIONAL TINGA,
TRIAL COURT OF MANILA CHICO-NAZARIO, and
BRANCH 17, GOVERNMENT OF GARCIA, JJ.
THE UNITED STATES OF
AMERICA, represented by the
Philippine Department of Justice, Promulgated:
and DIRECTOR OF NATIONAL February 27, 2006
BUREAU OF INVESTIGATION,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

The case stemmed from the petition for extradition filed on March 12,
2001 by the Government of the United States of America (US government)
through the Department of Justice (DOJ) against the petitioners.

After their arrest, petitioners applied for bail which the trial court granted
on September 25, 2001. The bail was set for one million pesos for each. Petitioners
then posted cash bonds.The US government moved for reconsideration of the grant
of bail, but the motion was denied by the trial court. Unsatisfied,
the US government filed a petition for certiorari with this Court,
entitled Government of the United States of America, represented by the Philippine
Department of Justice v. Hon. Rodolfo A. Ponferrada, etc., et al., and docketed as
G.R. No. 151456.
 Having no alternative remedy, petitioners filed the present petition on the
following grounds:
I
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF
HEREIN PETITIONERS WITHOUT PRIOR NOTICE AND
HEARING OF ITS CANCELLATION.

Once again we face the controversial matter of bail in extradition cases. We are
asked to resolve twin issues: First, in an extradition case, is prior notice and
hearing required before bail is cancelled? Second, what constitutes a special
circumstance to be exempt from the no-bail rule in extradition cases?

More significantly, petitioners claim that their bail should not have been
cancelled since their situation falls within the exception to the general rule of no-
bail. They allege that their continuous offer for voluntary extradition is a special
circumstance that should be considered in determining that their temporary liberty
while on bail be allowed to continue. They cite that petitioner Eduardo is in fact
already in the United States attending the trial. They also have not taken flight as
fugitives. Besides, according to petitioners, the State is more than assured they
would not flee because their passports were already confiscated and there is an
existing hold-departure order against them. Moreover, petitioners assert, they are
not a danger to the community.

Now, we are confronted with the question of whether a prospective

extraditee is entitled to notice and hearing before the cancellation of his or her bail.

The issue has become moot and academic insofar as petitioner Eduardo
Rodriguez is concerned. He is now in the USA facing the charges against him. But
co-petitioner Imelda Gener Rodriguez is here and stands on a different footing. We
agree that her bail should be restored.

In Purganan, we said that a prospective extraditee is not entitled to notice

and hearing before the issuance of a warrant of arrest, [14] because notifying him
before his arrest only tips him of his pending arrest. But this is for cases pending
the issuance of a warrant of arrest, not in a cancellation of a bail that had been
issued after determination that the extraditee is a no-flight risk. The policy is that a
prospective extraditee is arrested and detained to avoid his flight from justice.
[15]
On the extraditee lies the burden of showing that he will not flee once bail is
granted.[16] If after his arrest and if the trial court finds that he is no flight risk, it
grants him bail. The grant of the bail, presupposes that the co-petitioner has already
presented evidence to prove her right to be on bail, that she is no flight risk, and the
trial court had already exercised its sound discretion and had already determined
that under the Constitution and laws in force, co-petitioner is entitled to provisional
release.
Under these premises, and with the trial courts knowledge that in this case,
co-petitioner has offered to go on voluntary extradition; that she and her husband
had posted a cash bond of P1 million each; that her husband had already gone on
voluntary extradition and is presently in the USA undergoing trial; that the passport
of co-petitioner is already in the possession of the authorities; that she never
attempted to flee; that there is an existing hold-departure order against her; and that
she is now in her sixties, sickly and under medical treatment, we believe that the
benefits of continued temporary liberty on bail should not be revoked and their
grant of bail should not be cancelled, without the co-petitioner being given notice
and without her being heard why her temporary liberty should not be discontinued.

We emphasize that 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.[17]

The trial courts immediate cancellation of the bail of petitioners is contrary

to our ruling in Purganan, and it had misread and misapplied our directive therein.
 Now, was the order to issue warrant of arrest against petitioners and to
cancel the bail of extraditees a grave abuse of discretion of the trial court?

Grave abuse of discretion is capricious or whimsical exercise of judgment

that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law.[18] In our view, the cancellation of co-
petitioners bail, without prior notice and hearing, could be considered a violation
of co-petitioners right to due process tantamount to grave abuse of discretion.

Finally, considering that remanding the case to the court a quo will only
delay the final resolution of the case as in all probability it would only end up with
us again,[19] we will decide if Imeldas bail was validly cancelled.

In Purganan, we held also that the grounds used by the highest court in the
requesting state for the grant of bail may be considered, under the principle of
reciprocity.[20]

Considering that she has not been shown to be a flight risk nor a danger to
the community, she is entitled to notice and hearing before her bail could be
cancelled. Based on the record, we find that, absent prior notice and hearing, the
bails cancellation was in violation of her right to due process.
G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the

Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch
8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773.
These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private
respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the
said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges
that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack
or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential
extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong
Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on
June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong
Kong Special Administrative Region.

Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the
offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of
Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and
October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for
the provisional arrest of private respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application
for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ
of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as
G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and
sustaining the validity of the Order of Arrest against private respondent. The Decision became final
and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region
filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil
Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed, in the same case,- a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for
bail, holding that there is no Philippine law granting bail in extradition cases and that private
respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-
95733. It was then raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his
application for bail. This was granted by respondent judge in an Order dated December 20, 2001
allowing private respondent to post bail, thus:

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is
nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the
right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed
under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh
process resulting in a prolonged deprivation of ones liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

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.

ISSUE:

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first
time that this Court has an occasion to resolve the question of whether a prospective extraditee
may be granted bail.

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" (Sec. 18, Art. VIII,
Constitution). 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.

At first glance, the above ruling applies squarely to private respondents case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition;
(2) the higher value now being given to human rights in the international sphere; (3) the
corresponding duty of countries to observe these universal human rights in fulfilling their treaty
obligations; and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the individual
person may properly be a subject of international law is now taking root. The vulnerable doctrine that
the subjects of international law are limited only to states was dramatically eroded towards the
second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted
in the unprecedented spectacle of individual defendants for acts characterized as violations of the
laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg
principle, Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual person is now
a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave
recognition and importance to human rights. Thus, on December 10, 1948, the United Nations
General Assembly adopted the Universal Declaration of Human Rights in which the right to life,
liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the
principles contained in the said Declaration are now recognized as customarily binding upon
the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court,
in granting bail to a prospective deportee, held that under the Constitution,3 the principles set
forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also
adopted the International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty,
and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This commitment
is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for human rights." The Philippines, therefore, has
the responsibility of protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings before a court, to enable
it to decide without delay on the legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to
criminal proceedings, however, in light of the various international treaties giving recognition and
protection to human rights, particularly the right to life and liberty, a reexamination of this Courts
ruling in Purganan is in order.

First, we note that the exercise of the States power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. Respondents in administrative proceedings,
such as deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during
the pendency of administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed
in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both
are administrative proceedings where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction 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. Thus,
the Philippines should see to it that the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to hold him in connection
with any criminal investigation directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand
the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding state. 8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its
nature criminal, for it is not punishment for a crime, even though such punishment may follow
extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is
it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent
the escape of a person accused or convicted of a crime and to secure his return to the state from
which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain
the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of
P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the interest of justice." We further
note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a

criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the demanding state following the proceedings. "Temporary
detention" may be a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other
words, he had been detained for over two (2) years without having been convicted of any
crime. By any standard, such an extended period of detention is a serious deprivation of his
fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the
extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion for bail, a right to due process under the
Constitution.

The applicable standard of due process, however, should not be the same as that in criminal
proceedings. In the latter, the standard of due process is premised on the presumption of innocence
of the accused. As Purganan correctly points out, it is from this major premise that the ancillary
presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is
the possibility of flight of the potential extraditee. This is based on the assumption that such
extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative
Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the
purpose of extradition. However, it does not necessarily mean that in keeping with its treaty
obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due
process. More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily
met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying
bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his
Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used
in granting bail in extradition cases. According to him, this standard should be lower than proof
beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders
and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine whether
private respondent may be granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine
whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not,
the trial court should order the cancellation of his bail bond and his immediate detention; and
thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.
G.R. No. 93177 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT.
MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON,
LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO
LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA,
MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO
LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners,
vs.
GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL
COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ.
FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO.
14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and
CAPT. FRANCISCO T. MALLILLIN, respondents.

No. 95020 August 2, 1991

B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL.
ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN, petitioners,
vs.
HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C.,
LTC. JACINTO LIGOT PA., respondents.

No. 96948 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN,
CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC.
RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC.
JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ.
CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA,
CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL
NACINO, and LT. JOEY SARROZA, petitioners,
vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL.
ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T.
MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents.

No. 97454 August 2, 1991

AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN.
ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT.
COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention
Center/Jail, petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86,
CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO
JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS
CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT
MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents.

CRUZ, J.:p

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and
97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged
participation in the failed coup d' etat that took place on December 1 to 9, 1989.

The charges against them are 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).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning
the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against
them and the creation of the General Court Martial GCM convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14,
seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article
18 of Com. Act No. 408.

In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are
assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority
either to set aside its ruling denying bail to the private respondents.

In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of
Quezon City in a petition for habeas corpus directing the release of the private respondents.
Jurisdictional objections are likewise raised as in G.R. No. 95020.

Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been
constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in
G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990,
individually addressed to the petitioners, to wit:

You are hereby directed to appear in person before the undersigned Pre-Trial
Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon
City, then and there to submit your counter-affidavit and the affidavits of your
witnesses, if any, in the pre-trial investigation of the charge/charges against you for
violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS.
 Failure to submit the aforementioned counter-affidavits on the date above specified
shall be deemed a waiver of your right to submit controverting evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn
statements of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds,
prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was
done through a Motion for Summary Dismissal dated February 21, 1990.

In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5
days from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the
PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March
14,1990.

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by
Article of War 71, which provides:

Art. 71. Charges Action upon. Charges and specifications must be signed by a
person subject to military law, and under the oath either that he has personal
knowledge of, or has investigated, the matters set forth therein and that the same are
true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and
impartial investigation thereof shall have been made. This investigation will include
inquiries as to the truth of the matter set forth in said charges, form of charges, and
what disposition of the case should be made in the interest of justice and discipline.
At such investigation full opportunity shall be given to the accused to cross-examine
witnesses against him if they are available and to present anything he may desire in
his own behalf, either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are forwarded
after such investigation, they shall be accompanied by a statement of the substance
of the testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and that no
prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary
dismissal was denied, the motion for reconsideration remains unresolved to date and they have not
been able to submit their counter-affidavits.

At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were
exercising their right to raise peremptory challenges against the president and members of GCM
No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however,
that peremptory challenges had been discontinued under P.D. No. 39.
In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied
by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition
for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction.
After considering the petition and the answer thereto filed by the president and members of GCM
No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot.

On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to
declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He
later also complained that Generals De Villa and Aguirre had refused to release him "pending final
resolution of the appeal to be taken" to this Court.

After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of
intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of
additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia:

(a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to
all persons with the defined exception is applicable and covers all military men facing
court-martial proceedings. Accordingly, the assailed orders of General Court- Martial
No. 14 denying bail to petitioner and intervenors on the mistaken assumption that
bail does not apply to military men facing court-martial proceedings on the ground
that there is no precedent, are hereby set aside and declared null and void.
Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings
on the applications of bail of the petitioner, intervenors and which may as well include
other persons facing charges before General Court-Martial No. 14.

Pending the proceedings on the applications for bail before General Court-Martial
No. 14, this Court reiterates its orders of release on the provisional liberty of
petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition
for habeas corpus on the ground that they were being detained in Camp Crame without charges.
The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to
respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed
against the petitioners after more than a year after their arrest, the trial court ordered their release.

II

The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to
present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990,
and then again after the denial of their motion of February 21, 1990, when they were given until
March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for
reconsideration which they were again asked to submit in writing. This they did on March 13, 1990.
The motion was in effect denied when the PTI Panel resolved to recommend that the charges be
referred to the General Court Martial for trial.

The said petitioners cannot now claim they have been denied due process because the investigation
was resolved against them owing to their own failure to submit their counter-affidavits. They had
been expressly warned In the subpoena sent them that "failure to submit the aforementioned
counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit
controverting evidence." They chose not to heed the warning. As their motions appeared to be
dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the
petitioners to submit their defense.

Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not
availed of, it is deemed waived or forfeited without violation of the Bill of Rights.

There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is
now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court-
martial of jurisdiction." We so held in Arula v. Espino, 1 thus:

xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general
court-martial of jurisdiction.

The better accepted concept of pre-trial investigation is that it is directory, not

mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v.
Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said:

We do not think that the pre-trial investigation procedure by Article 70

(The Philippine counter-part is article of war 71, Commonwealth Act
408) can properly be construed as an indispensable pre-requisite to
the exercise of the Army General court martial jurisdiction.. The
Article does serve important functions in the administration of court-
martial procedures and does provide safeguards to an accused. Its
language is clearly such that a defendant could object to trial in the
absence of the required investigation. In that event the court-martial
could itself postpone trial pending the investigation. And the military
reviewing authorities could consider the same contention, reversing a
court- martial conviction where failure to comply with Article 70 has
substantially injured an accused. But we are not persuaded that
Congress intended to make otherwise valid court-martial judgments
wholly void because pre-trial investigations fall short of the standards
prescribed by Article 70. That Congress has not required analogous
pre-trial procedure for Navy court-martial is an indication that the
investigatory plan was not intended to be exalted to the jurisdictional
level.
 xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate

General of the Army did hold that where there had been no pre-trial
investigation, court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings of the Judge
Advocate General. This later interpretation has been that the pre-trial
requirements of Article 70 are directory, not mandatory, and in no way
effect the jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of Congress in
1947 after which Congress amended Article 70 but left unchanged
the language here under consideration. compensable pre-requisite to
the exercise of Army general court-martial jurisdiction

A trial before a general court-martial convened without any pretrial investigation

under article of war 71 would of course be altogether irregular but the court-martial
might nevertheless have jurisdiction. Significantly, this rule is similar to the one
obtaining in criminal procedure in the civil courts to the effect that absence of
preliminary investigation does not go into the jurisdiction of the court but merely to
the regularity of the proceedings.

As to what law should govern the conduct of the preliminary investigation, that issue was resolved
more than two years ago in Kapunan v. De Villa, 2 where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial
compliance with the requirements of law as provided in the Articles of War and P.D.
No. 77, as amended by P.D. No. 911. The amended charge sheets, charging
petitioners and their co-respondents with mutiny and conduct unbecoming an officer,
were signed by Maj. Antonio Ruiz, a person subject to military law, after he had
investigated the matter through an evaluation of the pertinent records, including the
reports of respondent AFP Board of Officers, and was convinced of the truth of the
testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser,"
in accordance with and in the manner provided under Art. 71 of the Articles of War.
Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory
application, the fact that the charge sheets were not certified in the manner provided
under said decrees, i.e., that the officer administering the oath has personally
examined the affiant and that he is satisfied that they voluntarily executed and
understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial
investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to
P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required
to file their counter-affidavit. However, instead of doing so, they filed an untitled
pleading seeking the dismissal of the charges against them. That petitioners were
not able to confront the witnesses against them was their own doing, for they never
even asked Maj. Baldonado to subpoena said witnesses so that they may be made
to answer clarificatory questions in accordance with P. D, No. 77, as amended by
P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of
the Articles of War because General Order No. M-6, which supposedly convened the body, was not
signed by Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads:

Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff
of the Armed Forces of the Philippines, the Chief of Constabulary and, when
empowered by the President, the commanding officer of a major command or task
force, the commanding officer of a division, the commanding officer of a military area,
the superintendent of the Military Academy, the commanding officer of a separate
brigade or body of troops may appoint general courts-martial; but when any such
commander is the accuser or the prosecutor of the person or persons to be tried, the
court shall be appointed by superior competent authority. ...

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he
authorized it because the order itself said it was issued "By Command of General De Villa" and it has
not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition
Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and
appointed its president and members. It is significant that General De Villa has not disauthorized or
revoked or in any way disowned the said order, as he would certainly have done if his authority had
been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he
sustained General Order No. M 6 in the Comment filed for him and the other respondents by the
Solicitor General.

Coming now to the right to peremptory challenge, we note that this was originally provided for under
Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12,
1948, to wit:

Art. 18. Challenges. Members of general or special courts-martial may be

challenged by the accused or the trial judge advocate for cause stated to the court.
The court shall determine the relevancy and validity thereof, and shall not receive a
challenge to more than one member at a time. Challenges by the trial judge advocate
shall ordinarily be presented and decided before those by the accused are offered.
Each side shall be entitled to the peremptory challenge, but the law member of the
court shall not be challenged except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of
Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for
a handful of Philippine Scout officers and graduates of the United States military and
naval academies who were on duty with the Philippine Army, there was a complete
dearth of officers learned in military law, its aside from the fact that the officer corps
of the developing army was numerically made equate for the demands of the strictly
military aspects of the national defense program. Because of these considerations it
 was then felt that peremptory challenges should not in the meanwhile be permitted
and that only challenges for cause, in any number, would be allowed. Thus Article 18
of the Articles of War (Commonwealth Act No. 408), as worded on September 14,
1938, the date of the approval of the Act, made no mention or reference to any
peremptory challenge by either the trial judge advocate of a court- martial or by the
accused. After December 17,1958, when the Manual for Courts-Martial of the
Philippine Army became effective, the Judge Advocate General's Service of the
Philippine Army conducted a continuing and intensive program of training and
education in military law, encompassing the length and breadth of the Philippines.
This program was pursued until the outbreak of World War 11 in the Pacific on
December 7, 1941. After the formal surrender of Japan to the allies in 1945, the
officer corps of the Armed Forces of the Philippines had expanded to a very large
number, and a great many of the officers had been indoctrinated in military law. It
was in these environmental circumstances that Article of War 18 was amended on
June 12,1948 to entitle "each side" to one peremptory challenge, with the sole
proviso that "the law member of court shall not be challenged except for cause.

On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of
Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel
and such other cases as may be referred to them.

On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition,

Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the
peremptory challenge, thus:

No peremptory challenge shall be allowed. Challenges for cause may be entertained

to insure impartiality and good faith. Challenges shall immediately be heard and
determined by a majority of the members excluding the challenged member. A tie
vote does not disqualify the challenged member. A successfully challenged member
shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code,
which was a compilation and codification of decrees, general orders, LOI and policies intended "to
meet the continuing threats to the existence, security and stability of the State." The modified rule on
challenges under P.D. No. 39 was embodied in this decree.

On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the
state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and
declared the dissolution of the military tribunals created pursuant thereto upon final determination of
the cases pending therein.

P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned
therein. With the termination of martial law and the dissolution of the military tribunals created
thereunder, the reason for the existence of P.D. No. 39 ceased automatically.
It is a basic canon of statutory construction that when the reason of the law ceases, the law itself
ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio
legis est anima: the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No.
39 became ineffective when the apparatus of martial law was dismantled with the issuance of
Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was
automatically revived and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge
remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when
martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be
considered no longer operative, having been cast out under the new dispensation as, in the words of
the Freedom Constitution, one of the "iniquitous vestiges of the previous regime.

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the
present government should invoke the rules of that discredited body to justify its action against the
accused officers.

The Court realizes that the recognition of the right to peremptory challenge may be exploited by a
respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is
hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom
of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers
and not to this Court. The judiciary can only interpret and apply the laws without regard to its own
misgivings on their adverse effects. This is a problem only the political departments can resolve.

The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and
mandamus and the petition for habeas corpus filed by the private respondents with the Regional
Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed
Forces accused of violations of the Articles of War, the respondent courts have no authority to order
their release and otherwise interfere with the court-martial proceedings.

The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with
"exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather
irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that
"appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of
Appeals.

It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not
to the remedies employed by the accused officers before the respondent courts.

In Martelino, we observed as follows:

It is true that civil courts as a rule exercise no supervision or correcting power over
the proceedings of courts-martial, and that mere errors in their proceedings are not
 open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true
that in the exercise of their undoubted discretion, courts-martial may commit such an
abuse of discretion what in the language of Rule 65 is referred to as "grave abuse
of discretion" as to give rise to a defect in their jurisdiction. This is precisely the
point at issue in this action suggested by its nature as one for certiorari and
prohibition ... .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme
Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies
and on petitions for habeas corpus and quo warranto. 5 In the absence of a law providing that the
decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only
before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise
similar jurisdiction.

We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally
not been recognized and is not available in the military, as an exception to the general rule
embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right
to a speedy trial is given more emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men
from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate
within the framework of democratic system, are allowed the fiduciary use of firearms
by the government for the discharge of their duties and responsibilities and are paid
out of revenues collected from the people. All other insurgent elements carry out their
activities outside of and against the existing political system.

xxx xxx xxx

National security considerations should also impress upon this Honorable Court that
release on bail of respondents constitutes a damaging precedent. Imagine a scenario
of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the
assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number
alone is already discomforting. But, the truly disquieting thought is that they could
freely resume their heinous activity which could very well result in the overthrow of
duly constituted authorities, including this Honorable Court, and replace the same
with a system consonant with their own concept of government and justice.

The argument that denial from the military of the right to bail would violate the equal protection
clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly
situated and does not apply where the subject of the treatment is substantially different from others.
The accused officers can complain if they are denied bail and other members of the military are not.
But they cannot say they have been discriminated against because they are not allowed the same
right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after
more than one year from their arrest, our finding is that there was substantial compliance with the
requirements of due process and the right to a speedy trial.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was
referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on
February 26, 1991, by the respondent court, where the petitioners submitted the charge
memorandum and specifications against the private respondents dated January 30, 1991. On
February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial
investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private
respondents received the copies of the charges, charge sheets and specifications and were required
to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than
one year in the investigation and preparation of the charges against the private respondents.
However, this was explained by the Solicitor General thus:

... The AFP Special Investigating Committee was able to complete it pre-charge
investigation only after one (1) year because hundreds of officers and thousands of
enlisted men were involved in the failed coup. All of them, as well as other witnesses,
had to be interviewed or investigated, and these inevitably took months to finish. The
pre-charge investigation was rendered doubly difficult by the fact that those involved
were dispersed and scattered throughout the Philippines. In some cases, command
units, such as the Scout Rangers, have already been disbanded. After the charges
were completed, the same still had to pass review and approval by the AFP Chief of
Staff.

While accepting this explanation, the Court nevertheless must reiterate the following admonition:

This Court as protector of the rights of the people, must stress the point that if the
participation of petitioner in several coup attempts for which he is confined on orders
of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed
against him or the existence of a prima facie case warranting trial before a military
commission is wanting, it behooves respondent then Major General Rodolfo Biazon
(now General) to release petitioner. Respondents must also be reminded that even if
a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite
confinement is not sanctioned, as Article 71 thereof mandates that immediate steps
must be taken to try the person accused or to dissmiss the charge and release him.
Any officer who is responsible for unnecessary delay in investigating or carrying the
case to a final conclusion may even be punished as a court martial may direct. 6

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26,
1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the
latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under
Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received
by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the
decision had not yet become final and executory when the special civil action in G.R. No. 97454 was
filed with this Court on March 12, 1991.

III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the
Court in Arula:

The referral of charges to a court-martial involves the exercise of judgment and

discretion (AW 71). A petition for certiorari, in order to prosper, must be based on
jurisdictional grounds because, as long as the respondent acted with jurisdiction, any
error committed by him or it in the exercise thereof will amount to nothing more than
an error of judgment which may be reviewed or corrected only by appeal. Even an
abuse of discretion is not sufficient by itself to justify the issuance of a writ
of certiorari.

As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of
discretion or without or in excess of jurisdiction to justify the intervention of the Court and the
reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No.
96948, where we find that the right to peremptory challenge should not have been denied, and in
G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released.

ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948,
the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise
the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and
97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of
the private respondents are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

SARMIENTO, J., concurring:

I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he
would deny bail to accused military personnel.
The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only
exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas
corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe
the inclusive meaning of "all persons" the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the
streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on
"provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting
thought is that they could freely resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable Court, and replace the same with
a system consonant with their own concept of government and justice." 3 But would a scenario of
1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail?
Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous"
elements of society?

We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be
granted the same right.

The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I
submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are
a government of laws, not tradition.

If there are precedents that attest to the contrary, I submit that a reexamination is in order.
G.R. No. 88555 November 21, 1991

EDUARDO N. ASWAT, petitioner,

vs.
BRIGADIER-GENERAL ALEJANDRO GALIDO, in his capacity as Commander of the Southern
Luzon Command, Armed Forces of the Philippines, Camp Guillermo Nakar, Lucena
City, respondent.

Pacifico M. Monje for petitioner.

Petitioner Eduardo N. Aswat and victim Felix B. Nebres were both enlisted men of the Armed Forces
of the Philippines ("AFP") respectively holding the ranks Private First Class and Corporal. Aswat and
Nebres were assigned to the SOLCOM but Aswat was detailed as caretaker of Brigadier General
Galido's Baguio resthouse while Nebres was assigned to act as a personal driver of Brigadier
General Galido's wife. On 29 December 1988, petitioner was involved in a shooting incident at
Dominican Hills, Baguio City, which resulted in the death of Nebres.

Records disclose that petitioner voluntarily surrendered to the Baguio City police authorities and was
briefly incarcerated at the Baguio City Jail until he was transferred to a SOLCOM detention cell on
31 December 1988. Petitioner has been detained at the SOLCOM Headquarters in Camp Guillermo
Nakar, Lucena City since then.

On 20 April 1989, petitioner was charged before a SOLCOM General Court-Martial ("SOLCOM-
GCM") with violation of Article 94 of the Articles of War ("A.W."), the specification being homicide.

While the court-martial proceedings were going on, petitioner filed the instant petition, contending:
(1) that the specification of homicide with which he was charged was committed outside a military
installation and hence the offense was cognizable by a regular, civilian court; (2) that he is entitled to
be released on bail as a matter of right pursuant to Section 13, Article III of the Constitution; and (3)
that he should be given his due base pay and other pay, aside from the allowances he has been
receiving, computed from the time of commencement of his detention.

The Court en banc issued the writ of habeas corpus and required respondent to make a return of the
writ before the Third Division of the Court. 2 After hearing, the Court, through the Third Division, resolved to require the
parties to file their memoranda in amplification of their respective oral arguments. 3

Petitioner seeks to make a distinction between offenses committed outside and those committed
inside a military installation or reservation. He assails the jurisdiction of the SOLCOM-GCM, alleging
that the specification of homicide was committed in Baguio City and in an area outside any military
installation or reservation.

The distinction upon which petitioner anchors his argument was obliterated sometime ago. As the
law now stands, as long as the accused is subject to military law, as defined under Article 2,
A.W., 4 he shall be punished as a court-martial may direct.
 Art 94. Various Crimes.Any person subject to military law who commits any felony,
crime, breach of law or violation of municipal ordinances which is recognized as an
offense of a penal nature and is punishable under the penal laws of the Philippines
or under municipal ordinances, (A) inside a reservation of the Armed Forces of the
Philippines, or (B) outside any such reservation when the offended party (and each
one of the offended parties if there be more than one) is a person subject to military
law, shall be punished as a court-martial may direct: In imposing the penalties for
offenses falling within this article, the penalties for such offenses provided in the
penal laws of the Philippines or in such municipal ordinances shall be taken into
consideration. 5 (Emphasis supplied).

Article 94, A.W., in its original form, did refer only to offenses committed inside a Philippine military
reservation as falling within the jurisdiction of a court-martial. In 1948, however, R.A. No. 242
amended Article 94, A.W. by providing that offenses committed outside a military reservation shall
also be punished as a court-martial may direct, but only "when the offended party (and each one of
the offended parties if there be more than one)" is similarly subject to military law. 6

There is no question that both petitioner and the deceased Nebres were subject to military law at the
time the latter was shot and killed.

Moreover, when the petitioner asked for the affirmative relief of bail from the SOLCOM-GCM, he in
effect recognized the jurisdiction of the General Court-Martial. Hence, petitioner is properly deemed
estopped to deny such jurisdiction.

ISSUE: Petitioner next contends that his right to bail is explicitly guaranteed in Section 13,
Article III of the Constitution.

RULING:

Although the right to bail applies to "all," the Court has very recently ruled that the guarantee is not
without any exception. In Comendador vs. De Villa, et al., 7 the Court en banc, speaking through Mr. Justice Cruz,
held:

We find that the right to bail invoked by the private respondents in G.R. No. 95020
has traditionally not been recognized and is not available in the military, as an
exception to the general rule embodied in the Bill of Rights. This much was
suggested in Arula, where We observed that the right to a speedy trial is given more
emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as
follows:

The unique structure of the military should be enough reason to

exempt military men from the constitutional coverage on the right to
bail.
 Aside from structural peculiarity, it is vital to note that mutinous
soldiers operate within the framework of the democratic system, are
allowed the fiduciary use of firearms by the government for the
discharge of their duties and responsibilities and are paid out of
revenues collected from the people. All other insurgent elements
carry out their activities outside of and against the existing political
system.

xxx xxx xxx

The argument that denial from the military of the right to bail would violate the equal
protection clause is not acceptable. This guarantee requires equal treatment only of
persons or things similarly situated and does not apply where the subject of the
treatment is substantially different from others. The accused officers can complain if
they are denied bail and other members of the military are not. But they cannot say
they have been discriminated against because they are not allowed the same right
that is extended to civilians. (Emphasis supplied)

Petitioner, as already noted, is a person subject to military law, and under Article 70, A.W., "any
person subject to military law charged with crime or with a serious offense under these article shall
be placed in confinement or in arrest, as circumstances may require."

Confinement is one way of ensuring presence during sessions of the General Court-Martial; the
more important reason underlying the authority to impose confinement is the need to enable the
proper military authority to instill discipline with the command and thereby achieve command
efficiency. By confining the petitioner, petitioner's unmilitary conduct may be curtailed from spreading
within the ranks of the command. The necessity for such confinement is a matter properly left to the
sound discretion of petitioner's superior officers. In Domingo vs. Minister of National Defense, 8 the
Court en banc, speaking through Mr. Justice Vasquez, held:

The petitioner is a person subject to military law facing charges before a general
court-martial, and his release from confinement pending the trial of the charges
against him is a matter that lies largely in the discretion of the military authorities.
They are undeniably in a better position to appreciate the gravity of said charges and
the feasibility and advisability of releasing him or relaxing the terms of his
confinement pending the trial and disposition of the case filed against him.

The authority of the respondent to order the arrest and confinement of the petitioner flows from his
general jurisdiction over his command. Petitioner being assaigned to SOLCOM, he is directly under
the command of then Brigadier General Galido.

The third issue raised by the petitioner concerns his right to receive base pay and other pay during
the pendency of his detention. At present, petitioner is receiving a monthly allowance of P540.00. 9

The law defines "pay" to include "base pay and all additional pay for the length of service or type of
duty such as longevity pay and flying pay," and distinguishes "pay" from "allowances" which is limited
to "quarters, subsistence, travel, and such other allowances as may by law become payable to army
personnel." 10

Concerning this issue, Section 18, Article 6 of R.A. No. 138, as amended, provides:

Sec. 18. An enlisted man awaiting trial by Court-martial or the result thereof, is not
entitled to receive pay as distinguished allowances until the result of the trial is
known; Provided, that any enlisted man who is placed on a full duty
status and performs regular duties while awaiting trial by court-martial, or the result
thereof, shall be entitled to receive all his pay and allowances for the period of such
duty unless the same shall have been lawfully forfeited by the approved sentence of
a court-martial prior to actual payment thereof to the enlisted man. For the purposes
of this section, the restoration to full duty status of enlisted men awaiting trial by
court-martial, or the result thereof, shall be as directed by the Chief of Staff, with the
approval of the Secretary of National Defense.' (as amended by R.A. 1067).
(Emphasis supplied)

Petitioner, during detention, ceased to perform his ordinary military duties. His continued detention
necessarily restrains his freedom of work, and he cannot carry out his normal military functions.
There is no showing by petitioner that he was placed on "full duty status" and performing "regular
duties" pending trial. On the premise of "no work no pay", petitioner cannot insist on his right to
receive base pay or any other pay while under detention. However, while petitioner is not entitled to
receive any base pay or any other pay during his detention, the law expressly permits him to receive
his regular and other allowances, if otherwise entitled thereto, while under detention.

ACCORDINGLY, the Court Resolved to DISMISS the Petition for Habeas Corpus for lack of merit.
No pronouncement to costs.

SO ORDERED.
G.R. No. 79269 June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court,
Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood,
Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:

The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the
City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and
prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of
respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander
Bilog" in Criminal Case No. 86-48926 for Rebellion, and the subsequent Order dated July 30, 1987
1

granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00
to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987
which asked the court to allow petitioner to present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.

The pivotal issues presented before Us are whether the right to bail may, under certain
circumstances, be denied to a person who is charged with an otherwise bailable offense, and
whether such right may be waived.

The following are the antecedents of this petition:

In the original Information filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional
2

Trial Court of Manila, later amended in an Amended Information which was filed on 24 October
3

1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were
charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal
Code allegedly committed as follows:

That in or about 1968 and for some time before said year and continuously thereafter until
the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party
of the Philippines, its military arm, the New People's Army, its mass infiltration network, the
National Democratic Front with its other subordinate organizations and fronts, have, under
the direction and control of said organizations' leaders, among whom are the aforenamed
accused, and with the aid, participation or support of members and followers whose
whereabouts and identities are still unknown, risen publicly and taken arms throughout the
country against the Government of the Republic of the Philippines for the purpose of
overthrowing the present Government, the seat of which is in the City of Manila, or of
removing from the allegiance to that government and its laws, the country's territory or part of
it;
 That from 1970 to the present, the above-named accused in their capacities as leaders of
the aforenamed organizations, in conspiracy with, and in support of the cause of, the
organizations aforementioned, engaged themselves in war against the forces of the
government, destroying property or committing serious violence, and other acts in the pursuit
of their unlawful purpose, such as . . .

(then follows the enumeration of specific acts committed before and after February 1986).

At the time the Information was filed the private respondent and his co-accused were in military
custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave.,
Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was
offered for his
capture.4

A day after the filing of the original information, or on 3 October 1986, a petition for habeas
corpus for private respondent and his co-accused was filed with this Court which, as shall hereafter
5

be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the
agreement of the parties under which herein private respondent "will remain in legal custody and will
face trial before the court having custody over his person" and the warrants for the arrest of his co-
accused are deemed recalled and they shall be immediately released but shall submit themselves to
the court having jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a Motion to Quash the
Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no
jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the
defendants; and (d) the criminal action or liability has been extinguished, to which petitioner filed an
6

Opposition citing, among other grounds, the fact that in the Joint Manifestation and Motion dated
7

October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that:

xxx xxx xxx

Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the
court having custody over his person.

In his Order of March 6, 1987, respondent Judge denied the motion to quash.
8

Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a
petition for bail, which herein petitioner opposed in an Opposition filed on 27 May 1987 on the
9 10

ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942
and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty
of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is
no longer entitled to bail as evidence of his guilt is strong.

On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos.
1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it
existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a
fine not to exceed P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83,
No. 24) which was officially released for circulation on June 26, 1987.
In his Order of 7 July 1987 respondent Judge, taking into consideration Executive Order No. 187,
11

granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon
private respondent the additional condition that he shall report to the court once every two (2)
months within the first ten (10) days of every period thereof. In granting the petition respondent
Judge stated:

. . . There is no more debate that with the effectivity of Executive Order No. 187, the offense
of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the
penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable
pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of
Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses
before final judgment. This is very evident upon a reading of Section 3, Rule 114,
aforementioned, in relation to Section 21, same rule. In view, therefore, of the present
circumstances in this case, said accused-applicant is now entitled to bail as a matter of right
inasmuch as the crime of rebellion ceased to be a capital offense.

As to the contention of herein petitioner that it would be dangerous to grant bail to private
respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is
to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release
would allow his return to his organization to direct its armed struggle to topple the government before
whose courts he invokes his constitutional right to bail, respondent Judge replied:

True, there now appears a clash between the accused's constitutional right to bail in a non-
capital offense, which right is guaranteed in the Bill of Rights and, to quote again the
prosecution, "the existence of the government that bestows the right, the paramount interest
of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a
"declaration of the rights of the individual, civil, political and social and economic, guaranteed
by the Constitution against impairment or intrusion by any form of governmental action.
Emphasis is placed on the dignity of man and the worth of individual. There is recognition of
certain inherent and inalienable rights of the individual, which the government is prohibited
from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To
this Court, in case of such conflict as now pictured by the prosecution, the same should be
resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his
rights under the Bill of Rights as against the State. Anyway, the government is that powerful
and strong, having the resources, manpower and the wherewithals to fight those "who
oppose, threathen (sic) and destroy a just and orderly society and its existing civil and
political institutions." The prosecution's fear may or may not be founded that the accused
may later on jump bail and rejoin his comrades in the field to sow further disorders and
anarchy against the duly constituted authorities. But, then, such a fear can not be a reason
to deny him bail. For the law is very explicit that when it comes to bailable offenses an
accused is entitled as a matter of light to bail. Dura est lex sed lex.

In a motion to reconsider the above order filed on 16 July 1987, petitioner asked the court to
12

increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice
Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an
amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable
for the offense and explaining that it is recommending P100,000.00 because the private respondent
"had in the past escaped from the custody of the military authorities and the offense for which he is
charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the
perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-
organized plan to overthrow the government through armed struggle and replace it with an alien
system based on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental motion for reconsideration indirectly asking the
13

court to deny bail to the private respondent and to allow it to present evidence in support thereof
considering the "inevitable probability that the accused will not comply with this main condition of his
bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts
which are widely known by the People of the Philippines and which this Honorable Court may have
judicial notice of:

1. The accused has evaded the authorities for thirteen years and was an escapee from
detention when arrested;

2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and
presented a Driver's License to substantiate his false identity;

4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;

5. He and his companions were on board a private vehicle with a declared owner whose
identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was
offered and paid for his arrest,

which "clearly indicate that the accused does not entertain the slightest intention to appear in court
for trial, if released." Petitioner further argues that the accused, who is the Chairman of the
Communist Party of the Philippines and head of its military arm, the NPA, together with his followers,
are now engaged in an open warfare and rebellion against this government and threatens the
existence of this very Court from which he now seeks provisional release," and that while he is
entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original
penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State
conflicts with that of an individual, that of the former prevails for "the right of the State of self-
preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the
Constitution." Petitioner further invokes precedents in the United States of America holding "that
there is no absolute constitutional barrier to detention of potentially dangerous resident aliens
pending deportation proceedings, and that an arrestee may be incarcerated until trial as he
14

presents a risk of flight; and sustaining a detention prior to trial of arrestee charged with serious
15

felonies who are found after an adversary hearing to pose threat to the safety of individuals and to
the community which no condition of release can dispel. 16

On 30 July 1987 respondent Judge handed down the Order adverted to in the introductory portion
17

of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court finds the
"supplemental" motion for reconsideration to be without merit and hereby denies it but finds
the first motion for reconsideration to be meritorious only insofar as the amount of bail is
concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of
bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the
additional condition that accused Rodolfo Salas shall report to the court once every two (2)
months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-
31665, August 6, 1975, 66 SCRA 58).
In denying the supplemental motion for reconsideration the respondent Judge took into account the
"sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the private respondent to bail but merely asked to
increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the
petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the
cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a
proviso on the right of an accused to bail in bailable offenses, but only an injunction against
excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of
Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108,
October 11, 1951, 90 Phil, 172.

Unable to agree with said Order, petitioner commenced this petition submitting therein the following
issues:

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE

ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL
DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S
SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE
OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE
GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE

ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED
BAIL TO THE RESPONDENT RODOLFO SALAS.

in support of which petitioner argues that private respondent is estopped from invoking his right to
bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and
face trial before the court having custody of his person" in consideration of the recall of the warrant
of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-
capital offenses, is not absolute when there is prima facie evidence that the accused is a serious
threat to the very existence of the State, in which case the prosecution must be allowed to present
evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion
when he did not allow petitioner to present all the evidence it may desire to support its prayer for the
denial of bail and when he declared that the State has forfeited its right to do so since during all the
time that the petition for bail was pending, it never manifested, much less hinted, its intention to
adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing
the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy
record of private respondents' criminal background, the gravity of the pending charge, and the
likelihood of flight.
18

In Our resolution of 11 August 1987 We required the respondents to comment on the petition and
19

issued a Temporary Restraining Order ordering respondent Judge to cease and desist from
implementing his order of 30 July 1987 granting bail to private respondent in the amount of
P50,000.00.

In his Comment filed on 27 August 1987, private respondent asks for the outright dismissal of the
20

petition and immediate lifting of the temporary restraining order on the following grounds:

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE

ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER
 WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON
APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE

PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION

PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE
CONSTITUTION.

IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT

EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS
NON-EXISTENT AND/OR HAD BEEN WAIVED.

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES

NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER
CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. The reply was filed on 18
21

September 1987. 22

In Our resolution of 15 October 1987 We gave due course to the petition and required the parties to
23

file simultaneously their memoranda within twenty days from notice.

In their respective manifestations and motions dated 5 November and 23 November

24

1987 petitioner and private respondents asked to be excused from filing their Memoranda and that
25

the petition and reply be considered as the Memorandum for petitioner and the Comment as the
Memorandum for private respondent, which We granted in Our resolution of 19 November
1987 and 1 December 1987, respectively.
26 27

In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on
the issues raised in this petitions, which he complied with by filing his Manifestation on 30 May
28

1990 wherein he manifests that he supports the petition and submits that the Order of respondent
29

Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private
respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail
to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the
primary consideration is to insure the attendance of the accused at the trial of the case against him
which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever
amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on
Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor
General likewise maintains that the right of the petitioner to hearing on the application of private
respondent for bail cannot be denied by respondent Judge.
And now on the issues presented in this case.

I.

Unquestionably, at the time the original and the amended Informations for rebellion and the
application for bail were filed before the court below the penalty imposable for the offense for which
the private respondent was charged was reclusion perpetua to death. During the pendency of the
application for bail Executive Order No. 187 was issued by the President, by virtue of which the
penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored.
The restored law was the governing law at the time the respondent court resolved the petition for
bail.

We agree with the respondent court that bail cannot be denied to the private respondent for he is
charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore,
30

a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus:

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 prescribed 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.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

Bail, a matter of right: exception. All persons in custody shall, before final conviction, be
entitled to bail as a matter of right, except those charged with a capital offense or an offense
which, under the law at the time of its commission and at the time of the application for bail,
is punishable by reclusion perpetua, when evidence of guilt is strong.

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when
the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the
31

right is absolute.
32

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact
that the accused was already convicted, although erroneously, by the trial court for the complex
crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment,
We granted bail in the amount of P30,000.00 during the pendency of his appeal from such
conviction. To the vigorous stand of the People that We must deny bail to the accused because the
security of the State so requires, and because the judgment of conviction appealed from indicates
that the evidence of guilt of Hernandez is strong, We held:

. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican
state, like ours, to be derived upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major preoccupation of our political
system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of
section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4),
(5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the
protection of several aspects of freedom.
The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the
Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the
suspension of the right to bail, if the government's campaign to suppress the rebellion is to
be enhanced and rendered effective. If the right to bail may be demanded during the
continuance of the rebellion, and those arrested, captured and detained in the course thereof
will be released, they would, without the least doubt, rejoin their comrades in the field
thereby jeopardizing the success of government efforts to bring to an end the invasion,
rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a
matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is
limited to determining whether or not evidence of guilt is strong. But once it is determined that the
33

evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of
Prisons, supra., We held:

The provision on bail in our Constitution is patterned after similar provisions contained in the
Constitution of the United States and that of many states of the Union. And it is said that:

The Constitution of the United States and the constitution of the many states provide
that all persons shall be bailable by sufficient sureties, except for capital offenses,
where the proof is evident or the presumption of guilt is great, and, under such
provisions, bail is a matter of right which no court or judge can properly refuse, in all
cases not embraced in the exceptions. Under such provisions bail is a matter of right
even in cases of capital offenses, unless the proof of guilt is evident or the
presumption thereof is great! 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail
in the instances where bail is a matter of right. However, in the cases where the grant of bail
is discretionary, due process requires that 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. 35

We agree, however, with petitioner that it was error for the respondent court to fix the bond at
P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are
not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et
al., 170 SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and
reasonable opportunity for the prosecution to refute it. Among them are the nature
and circumstances of the crime, character and reputation of the accused, the weight
of the evidence against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or not the accused
is under bond in other case. . . .

In the instant case petitioner has sufficiently made out allegations which necessitate a grant
of an opportunity to be heard for the purpose of determining the amount of bail, but not for
the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to
deny bail.
 II.

It must, however, be stressed that under the present state of the law, rebellion is no longer
punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968
approved on 24 October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article 135 of the Revised Penal
Code by increasing the penalty for rebellion such that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who
promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty
of reclusion perpetua.

Any person merely participating or executing the commands of others in a rebellion

or insurrection shall suffer the penalty of reclusion perpetua.

xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed
prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term
is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same. 36

III.

We agree with Petitioner that private respondent has, however, waived his right to bail in
G.R. No. 76009.

On 3 October 1986, or the day following the filing of the original information in Criminal Case
No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent,
and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia
Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel
Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying,
among others, that the petition be given due course and a writ of habeas corpus be issued
requiring respondents to produce the bodies of herein private respondent and his co-
accused before the Court and explain by what authority they arrested and detained them.
The following proceedings took place thereafter in said case:

1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required

respondents to make a return of the writ on or before the close of office hours on 13 October
and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning.

2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a
Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina
Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were
apprehended by the military on September 29, 1986 in the evening at the Philippine General
Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party
of the Philippines, New People's Army and National Democratic Front, organizations
dedicated to the overthrow of the Government through violent means, and having actually
committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After
their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial
Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for
their arrest were issued and respondents continue to detain them because of the warrants of
arrest and the pendency of the criminal cases against them. Respondents further allege that,
contrary to the allegation in the petition, herein private respondent was not a member of the
NDF panel involved in peace negotiations with the Government; neither is he and his
companions Cruz and Concepcion covered by any, safe conduct pass issued by competent
authorities.

3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements
reached between them. We issued a resolution reading as follows:

When this case was called for hearing this morning, Attorneys Romeo Capulong,
Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon
Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for
the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General
Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the
respondents, with Solicitor General Ordoez arguing for the respondents.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in

conformity with the agreement reached with the government, the petition for habeas
corpus will be withdrawn with detainee Rodolfo Salas to remain under custody,
whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released
immediately.

Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing
statement made by petitioners' counsel regarding the withdrawal of the petition
for habeas corpus, declaring that no objection will be interposed to the immediate
release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will
be required of them, but they will continue to face trial with their co-accused, Rodolfo
Salas; further, that they will not be rearrested on the basis of the warrants issued by
the trial court provided that they manifest in open Court their willingness to subject
themselves to the jurisdiction of the Court and to appear in court when their presence
is required.

In addition, he stated that he is willing to confer with petitioners' counsel today

relative to the compromise agreement that they have previously undertaken to
submit.

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath
as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have
agreed to subject themselves to the jurisdiction of the trial court, the Court ordered
their immediate release.

Thereafter, the Court approved the foregoing manifestations and statements and
required both parties to SUBMIT to the Court their compromise agreement by 4:00
o'clock this afternoon. Teehankee, C.J., is on official leave.

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint
Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and
Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and
Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows:
 COME NOW petitioners and the respondents, assisted by their respective counsel,
and to this Honorable Tribunal respectfully manifest:

1. That in the discussion between Romeo Capulong, petitioners' counsel, and

Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were
conducted to find out how the majesty of the law may be preserved and human
considerations may be called into play.

2. That in the conference both counsel agreed to the following terms of agreement:

a. The petition for habeas corpus will be withdrawn by petitioners and

Josefina Cruz and Jose Milo Concepcion will be immediately released but
shall appear at the trial of the criminal case for rebellion (People v. Rodolfo
Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial
Court, National Capital Judicial Region) filed against them under their
personal recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before
the court having custody over his person.

c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled in view of formal manifestation before
the Supreme Court that they will submit themselves to the court having
jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the conformity of the
Government to the foregoing terms which were likewise accepted by petitioner (sic)
and their counsel of record.

4. That the two counsel submitted their oral manifestation during the hearing on
October 14 and the present manifestation in compliance with the resolution
announced in court this morning.

WHEREFORE, it is prayed that the petition for habeas corpus be dismissed.

5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas,
Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen.
Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col.
Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14,
1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and
Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A.
Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney
Josue S. Villanueva as counsel for respondents which states that they have entered
into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by
petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately
released but shall appear at the trial of the criminal case for rebellion [People vs.
Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital
Judicial Region, Branch XII, Manila], filed against them, on their personal
recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial
 before the court having custody over his person; and [c] the warrant of arrest for the
person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in
view of the formal manifestation before this Court that they will submit themselves to
the court having jurisdiction over their person and in view of the said agreement, the
petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition
for habeas corpus but subject to the condition that petitioners' lead counsel, Atty.
Capulong, upon his oath as member of the Bar, shall abide by his commitment to
ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the
criminal case for rebellion filed against them. Teehankee, C.J., is on official leave.

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even
during the pendency of the trial of his criminal case, [he] has expressly waived his right to
bail." Upon the other hand, private respondent asserts that this claim is totally devoid of factual and
37

legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest
and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was
not resolved by this Court or by the compromise agreement of the parties but left open for further
determination in another proceeding. Moreover, the matter of the right to bail was neither raised by
either party nor resolved by this Court, and the legal steps promptly taken by private respondent
after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the
petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional
rights to be granted not only provisional but final and permanent liberty. Finally, private respondent
maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means
that private respondent agreed to continue to be in the custody of the law or in custodia legis and
nothing else; it is not to be interpreted as waiver.

Interestingly, private respondent admits that:

"Custody" has been held to mean nothing less than actual imprisonment. It is also defined as
the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing
or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59
Pa. 320 and Rolland v. Com. 82 Pa. 306)

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled
jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for
admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38

When the parties in G.R. No. 76009 stipulated that:

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having
custody over his person.

they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of
the court, or in actual confinement or detention, as distinguished from the stipulation concerning his
co-petitioners, who were to be released in view of the recall of the warrants of arrest against them;
they agreed, however, "to submit themselves to the court having jurisdiction over their persons."
Note should be made of the deliberate care of the parties in making a fine distinction between legal
custody and court having custody over the person in respect to Rodolfo Salas and court having
jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to
emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had
the parties intended otherwise, or had this been unclear to private respondent and his counsel, they
should have insisted on the use of a clearer language. It must be remembered that at the time the
parties orally manifested before this Court on 14 October 1986 the terms and conditions of their
agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had
already been issued by the trial court against private respondent and his co-accused. The stipulation
that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and
that only they shall be released, further confirmed the agreement that herein petitioner shall remain
in custody of the law, or detention or confinement.

In defining bail as:

. . . the security given for the release of a person in custody of the law, . . .

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the
term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an
accused from imprisonment until his conviction and yet secure his appearance at the trial. It 39

presupposes that the person applying for it should be in the custody of the law or otherwise deprived
of liberty.
40

Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had
unequivocably waived his right to bail.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right recognized by law.

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing
legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to
exist, with the intent that such right shall be surrendered and such person forever deprived of its
benefit; or such conduct as warrants an inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it."41

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character, and, since the
word "waiver" covers every conceivable right, it is the general rule that a person may waive
any matter which affects his property, and any alienable right or privilege of which he is the
owner or which belongs to him or to which he is legally entitled, whether secured by contract,
conferred with statute, or guaranteed by constitution, provided such rights and privileges rest
in the individual, are intended for his sole benefit, do not infringe on the rights of others, and
further provided the waiver of the right or privilege is not forbidden by law, and does not
contravene public policy; and the principle is recognized that everyone has a right to waive,
and agree to waive, the advantage of a law or rule made solely for the benefit and protection
of the individual in his private capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statute or guaranteed by
constitution may be waived, a waiver in derogation of a statutory right is not favored, and a
waiver will be inoperative and void if it infringes on the rights of others, or would be against
public policy or morals and the public interest may be waived.
 While it has been stated generally that all personal rights conferred by statute
and guaranteed by constitution may be waived, it has also been said that constitutional
provisions intended to protect property may be waived, and even some of the constitutional
rights created to secure personal liberty are subjects of waiver.
42

In Commonwealth vs. Petrillo, it was held:

43

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in
which the state, as well as the accused, is interested; and (b) those which are personal to the
accused, which are in the nature of personal privileges. Those of the first class cannot be
waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will." 44

This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be
45 46

heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of
Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and
1wphi1

independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly
suggests that the other rights may be waived in some other form or manner provided such waiver
will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a
right which is personal to the accused and whose waiver would not be contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private
respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case
No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,
Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion,
are hereby NULLIFIED and SET ASIDE.

SO ORDERED.
A.M. No. MTJ-94-897 December 5, 1994

MINOR CYNTHIA L. LARDIZABAL THRU COUNSEL ATTY. LUIS L. LARDIZABAL, petitioner,

vs.
JUDGE OSCAR A. REYES, respondent.

Luis Lardizabal for petitioner.

PADILLA, J.:

This is a verified complaint, dated 25 October 1993, filed by minor Cynthia L. Lardizabal, through
Atty. Luis L. Lardizabal, against Judge Oscar A. Reyes, Municipal Circuit Trial Court, Tagudin-Suyo,
Province of Ilocos Sur, charging Judge Reyes with ignorance of the law resulting in gross
miscarriage of justice.

The complaint alleges that on 1 September 1993, the complainant, a

12-year old girl, filed a criminal complaint for rape against a certain Dionisio Lozano alias "Dioning";
that after conducting the required preliminary investigation of the complainant and her witnesses,
respondent judge issued on 2 September 1993 an order directing the arrest of the accused, but at
the same time, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without any
application on the part of the accused to be admitted to bail and without conducting any hearing
thereon; that when the accused filed on 7 September 1993 a motion to reduce bail from P80,000.00
to P20,000.00, respondent judge, again, without prior notice and hearing, reduced the bail to
P40,000.00.

Asked to comment on the complaint, respondent Judge Reyes explained that after carefully
considering and evaluating the evidence presented at the preliminary investigation, acting with all
honesty and good faith, he arrived at a conclusion that the evidence adduced was not strong enough
to deny bail for the provisional liberty of the accused; that he later reduced the bail to P40,000.00 on
the premise that justice must be tempered with mercy and based also on the due process clause
which protects an accused against conviction except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which the accused is charged.

The Court does not accept as satisfactory respondent's explanation that good faith urged him to fix
and grant bail motu proprio for the provisional release of the accused charged with rape. By so
doing, he acted irregularly, thereby depriving the prosecution of an opportunity to interpose
objections to the grant of bail. The rule is explicit that when an accused is charged with a serious
offense punishable with reclusion perpetua, such as rape, bail may be granted only after a motion for
that purpose has been filed by the accused and a hearing thereon conducted by a judge to
determine whether or not the prosecution's evidence of guilt is strong.

Respondent could not have arrived at a fair conclusion that the evidence was not strong enough to
deny bail to the accused when the prosecution had not been heard on the matter. Respondent's
unjustified haste in granting bail and thereafter reducing the amount thereof, in both instances,
without hearing the side of the prosecution, speaks poorly of his competence in applying the law and
jurisprudence on the matter.

Whether the motion for bail of an accused 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 wish to introduce on the probable
guilt of the accused, before the court resolves the motion for bail. If, as in the present case, 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. 1

We find disturbing respondent's unusual regard for the rights of the accused to be protected from
harassment, as if the rights of the victim are not important enough. Compassion is imperative and
laudable. It should not however be misplaced, for the victim and not only the accused, is equally
deserving of it. Justice, though due the accused, is due the accuser also. The concept of fairness
must not be strained till it is narrowed to a filament. We are to keep the balance true. Nor does it
suffice that the questions asked by respondent judge before bail was granted could be characterized
as searching. That fact did not cure an infirmity of a jurisdictional character. 2

Respondent judge tried to absolve himself from the charge of gross incompetence by stating that in
the absence of malice or any wrongful conduct, the judge cannot be held administratively
responsible, for no one called upon to try the facts or interpret the law in the process of administering
justice can be infallible in his judgment.

Respondent must not hide behind that fundamental rule. While the Court does not require perfection
and infallibility, it reasonably expects a faithful and intelligent discharge of duty by those who are
selected to fill the position of administrators of justice. 3 Moreover, the Code of Judicial Conduct
requires judges to act with competence, integrity and independence and should so behave at all times as
to promote public confidence in the integrity and impartiality of the judiciary. 4

WHEREFORE, the Court finds respondent Judge Oscar A. Reyes GUILTY of gross ignorance of the
law, and is fined Twenty Thousand Pesos (P20,000.00), with a warning that a repetition of the same
or similar offense will be dealt with more severely.

SO ORDERED.
EOPLE OF THE PHILIPPINES, G.R. No. 158754
Petitioner,

- versus -

SANDIGANBAYAN (Special Division)

and JOSE JINGGOY ESTRADA,
Respondents.
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
*
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
Promulgated:
August 10, 2007
x--------------------------------------------------x

DECISION
GARCIA, J.:

The instant petition for certiorari under Rule 65 of the Rules of Court seeks to
reverse and set aside the Resolution[1] of herein respondent Sandiganbayan (Special
Division) issued on March 6, 2003 in Criminal Case No. 26558, granting bail
to private respondent Senator Jose Jinggoy Estrada (hereafter Jinggoy for brevity),
as effectively reiterated in its Resolution[2] of May 30, 2003, denying the
petitioners motion for reconsideration.
The factual antecedents which gave rise to this proceeding are set forth in
the Courts Decision[3] of February 26, 2002, in G.R. No. 148965, to wit:
In November 2000, as an offshoot of the impeachment proceedings against Joseph
Ejercito Estrada, then President of the Republic of the Philippines, five criminal
complaints against the former President and members of his family, his associates,
friends and conspirators were filed with the Office of the Ombudsman.
On April 4, 2001, the Ombudsman issued a Joint Resolution finding probable
cause warranting the filing with the Sandiganbayan of several criminal
Informations against the former President and the other respondents therein. One
of the Informations was for the crime of plunder under Republic Act [RA] No.
7080 and among the respondents was herein petitioner Jose Jinggoy
Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal
Case No. 26558, the case was assigned to [the] respondent Third Division of the
Sandiganbayan. xxx. (Emphasis added.)

The amended information referred to, like the original, charged respondent
Jinggoy, together with the former President and several others, with plunder,
defined and penalized under RA No. 7080, as amended by Section 12 of RA No.
7659, allegedly committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, , by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there wilfully (sic), unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:
(a) by receiving OR collecting, directly or indirectly,
on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM
OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connivance with co-accused Jose Jinggoy Estrada, , [and] JOHN
DOES AND JANE DOES, in consideration OF TOLERATION
OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds
[P130,000,000.00], more or less, representing a portion of the
[P200,000,000] tobacco excise tax share allocated for the Province
of Ilocos Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie Atong Ang,
Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER
JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK
MORE OR LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF
THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF
MORE OR LESS [P1,847,578,057.50]; AND BY COLLECTING
OR RECEIVING, DIRECTLY OR INDIRECTLY,BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF
 SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT [P189,700,000.00], MORE OR LESS, FROM THE
BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME JOSE VELARDE;
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBA
CKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME
JOSE VELARDE AT THE EQUITABLE-PCI BANK.[4]
What transpired next are narrated in the same February 26, 2002 Decision
in G.R. No. 148965, thus:
On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy]
and his co-accused. On its basis, [Jinggoy] and his co-accused were placed in
custody of the law.
On April 30, 2001, [Jinggoy] filed a Very Urgent Omnibus Motion alleging that:
(1) no probable cause exists to put him on trial and hold him liable for plunder, it
appearing that he was only allegedly involved in illegal gambling and not in a
series or combination of overt or criminal acts as required in R.A. No. 7080; and
(2) he is entitled to bail as a matter of right. [He] prayed that he be excluded from
the Amended Information . In the alternative, [he] also prayed that he be allowed
to post bail ..
On June 28, 2001, [he] filed a Motion to Resolve Mayor Jose Jinggoy Estradas
Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An
Incumbent Has And That On Its Face, the Facts Charged In The Information Do
Not Make Out A Non-Bailable Offense As To Him.
xxx xxx xxx
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying
[Jinggoys] Motion to Quash and Suspend and Very Urgent Omnibus
Motion. [His] alternative prayer to post bail was set for hearing after arraignment
of all accused. xxx
xxx xxx xxx
The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the
Resolution. Respondent court denied the motion and proceeded to arraign
[him]. [He] refused to make his plea prompting respondent court to enter a plea of
not guilty for him.[5] (Emphasis and words in brackets added)
From the denial action of the Sandiganbayan immediately adverted to, Jinggoy
interposed a petition for certiorari before this Court claiming that the respondent
Sandiganbayan committed grave abuse of discretion in, inter alia, (a) sustaining
the charge against him for alleged offenses and with alleged conspirators with
whom he is not even connected, and (b) in not fixing bail for him. Pending
resolution of this petition, docketed as G.R. No. 148965, Jinggoy filed with the
Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons. The
Ombudsman opposed the motion. For three (3) days in September 2001, the
Sandiganbayan conducted hearings on the motion for bail, with one Dr. Roberto
Anastacio of the MakatiMedical Center appearing as sole witness for Jinggoy.[6]
On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for
early resolution of his Petition for Bail on Medical/Humanitarian
Considerations. He reiterated his earlier plea for bail filed with the Sandiganbayan.
On the same day, the Court referred the motion to the Sandiganbayan for resolution
and directed said court to make a report, not later than 8:30 in the morning
of December 21, 2001.[7]
The report was submitted as directed. Attached to the Report was a copy of the
Sandiganbayans Resolution dated December 20, 2001 denying Jinggoys motion for
bail for lack of factual basis. According to the graft court, basing its findings on the
earlier testimony of Dr. Anastacio, Jinggoy failed to submit sufficient evidence to
convince the court that the medical condition of the accused requires that he be
confined at home and for that purpose that he be allowed to post bail. [8]

On February 26, 2002, the Court dismissed Jinggoys petition in G.R. No.
148965, on the following rationale:
The constitutional mandate makes the grant or denial of bail in capital offenses
hinge on the issue of whether or not the evidence of guilt of the accused is
strong. This requires that the trial court conduct bail hearings xxx. The burden of
proof lies with the prosecution to show strong evidence of guilt.
This Court is not in a position to grant bail to [Jinggoy] as the matter requires
evidentiary hearing that should be conducted by the Sandiganbayan. The hearings
on which respondent court based its Resolution of December 20, 2001 involved
the reception of medical evidence only and which evidence was given in
September 2001, five months ago. The records do not show that evidence on
petitioners guilt was presented before the lower court.
Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct
hearings to determine if the evidence of [Jinggoys] guilt is strong as to warrant the
granting of bail to [him].[9] (Underscoring and words in brackets added).

On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus

Application for Bail [10] against which the prosecution filed its comment and
opposition. Bail hearings were then conducted, followed by the submission by the
parties of their respective memoranda.
In the herein assailed Resolution[11] of March 6, 2003, respondent Sandiganbayan
(Special Division) granted the omnibus application for bail, disposing as follows:
WHEREFORE, in light of all the facts and applicable law and jurisprudence,
JOSE JINGGOY ESTRADAs OMNIBUS APPLICATION FOR BAIL
dated April 16, 2002 is GRANTED. Bail for accused-movant is fixed at Five
Hundred Thousand Pesos (Php500,000.00) to be paid in cash and his release is
ordered upon the posting thereof and its approval, unless movant is being held for
some other legal cause.
This resolution is immediately executory.
SO ORDERED.

Petitioner filed a motion for reconsideration thereto which the respondent court
denied via the herein equally assailed May 30, 2003 Resolution,[12] the dispositive
part of which reads:
WHEREFORE, for lack of merit, the prosecutions MOTION FOR
RECONSIDERATION [RE: GRANT OF JOSE JINGGOY ESTRADAS
PETITION FOR BAIL] dated 13 March 2003 is DENIED.
SO ORDERED.
Hence, the present petition on the submission[13] that respondent Special Division
of the Sandiganbayan acted with grave abuse of discretion amounting to lack or
excess of jurisdiction -
I.

IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,

[CONSIDERING] THE WELL-ESTABLISHED THEORY OF OVERLAPPING
CONSPIRACIES AND, THUS, GRIEVOUSLY DISREGARDED THE
APPLICATION OF ACCEPTED CRIMINAL LAW PRECEPTS AND
THEREBY SET A DANGEROUS PRECEDENT.
II.
xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA
WHEN IT FAILED TO RECOGNIZE THAT THE CONDUCT OF
RESPONDENT JINGGOY ESTRADA POINTED TO A CONCURRENCE OF
SENTIMENT OR CRIMINAL DESIGN INDICATING THE EXISTENCE OF A
CONSPIRACY BETWEEN ACCUSED JOSEPH ESTRADA AND JINGGOY
ESTRADA.
III.
 xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA
CONSIDERING THAT THE UNDISPUTED FACT CLEARLY EVIDENCES
THAT RESPONDENT JINGGOY ESTRADA, EVEN WITHOUT A FINDING
OF CONSPIRACY, IS EQUALLY GUILTY AND LIABLE AS ACCUSED
JOSEPH ESTRADA HIMSELF BY HIS INDISPENSABLE COOPERATION
AND/OR DIRECT PARTICIPATION IN THE COMMISSION OF THE CRIME
OF PLUNDER.

IV.

xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS

WELL AS THE POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY
ESTRADA, TO SUBPARAGRAPH A OF THE AMENDED INFORMATION.

The imputation of grave abuse of discretion to the public respondent is untenable.

To begin with, Section 13 of Article III (Bill of Rights) of the Constitution

mandates:

Section 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. xxx.

Even if the capital offense charged is bailable owing to the weakness of the
evidence of guilt, the right to bail may justifiably still be denied if the probability
of escape is great.[14] Here, ever since the promulgation of the assailed Resolutions
a little more than four (4) years ago, Jinggoy does not, as determined by
Sandiganbayan, seem to be a flight risk. We quote with approval what the graft
court wrote in this regard:

It is not open to serious doubt that the movant [Jinggoy] has, in general, been
consistently respectful of the Court and its processes. He has not ominously
shown, by word or by deed, that he is of such a flight risk that would necessitate
his continued incarceration. Bearing in mind his conduct, social standing and his
other personal circumstances, the possibility of his escape in this case seems
remote if not nil.[15]

The likelihood of escape on the part individual respondent is now almost nil, given
his election on May 10, 2004, as Senator of the Republic of the Philippines. The
Court takes stock of the fact that those who usually jump bail are shadowy
characters mindless of their reputation in the eyes of the people for as long as they
can flee from the retribution of justice. On the other hand, those with a reputation
and a respectable name to protect and preserve are very unlikely to jump bail. The
Court, to be sure, cannot accept any suggestion that someone who has a popular
mandate to serve as Senator is harboring any plan to give up his Senate seat in
exchange for becoming a fugitive from justice.
Petitioners first argument denigrates as grave abuse of discretion the public
respondents rejection of the theory of overlapping conspiracies, which, in the
abstract, depicts a picture of a conspirator in the first level of conspiracy
performing acts which implement, or in furtherance of, another conspiracy in the
next level of which the actor is not an active party. As the petitioners logic goes
following this theory, respondent Jinggoy is not only liable for conspiring with
former President Estrada in the acquisition of ill-gotten wealth from jueteng under
par. (a) of the amended information. He has also a culpable connection with the
conspiracy, under par. (b), in the diversion of the tobacco excise tax and in
receiving commissions and kickbacks from the purchase by the SSS and GSIS of
Belle Corporation shares and other illegal sources under par. (c) and (d), albeit, he
is not so named in the last three paragraphs. And since the central figure in the
overlapping conspiracies, i.e., President Estrada, is charged with a capital offense,
all those within the conspiracy loop would be considered charged with the same
kind of non-bailable offense.
Explaining its point, petitioner cites People v. Castelo[16] which, as here, also
involves multiple levels of conspiracies. Just like in the present case where the lead
accused is a former President no less, the prime suspect in Castelo was also a
powerful high-ranking government official a former Judge who later rose to hold,
in a concurrent capacity, the positions of Secretary of Justice and Secretary of
National Defense, to be precise. In Castelo, charges and countercharges were
initially hurled by and between Castelo and Senator Claro Recto, who was then
planning to present Manuel Monroy as star witness against Castelo in a scandal
case. Castelo left the Philippines for Korea. While away, someone shot Monroy
dead. Evidence pointed to a conspiracy led by a certain Ben Ulo (who appears to
be the mastermind) and a group of confidential agents of the Department of
National Defense, one of whom was the triggerman. Coincidentally, Ben Ulo was a
close bodyguard of Castelo. In the end, the Solicitor General tagged Ben Ulo (not
Castelo) as the central figure in the conspiracy. This notwithstanding, the Court
held Castelo guilty beyond reasonable doubt for murder, because only he had a
motive for desiring Monroys demise. The conspiracy between Castelo and Ben Ulo
was then determined to be overlapping with the conspiracy between Ben Ulo and
the confidential agents, one of whom was the triggerman.
Further explaining the theory of overlapping conspiracies, petitioner cites the
ruling in People v. Ty Sui Wong,[17] featuring a love triangle involving a certain
Victor and Mariano, each out to win the heart of Ruby. Victor left Manila for
Mindanao. While Victor was away, the dead body of Mariano was found with
multiple stab wounds in a dark alley in Pasay. Evidence pointed to a conspiracy
among Sampaloc hoodlums who had no direct link with Victor. However, one of
the neighbors of the Sampaloc hoodlums was a classmate of Victor. In the end, on
the basis of interlocking confessions, the Court found Victor and his classmate
together with all the Sampaloc hoodlums guilty of murder.
Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner
presently argues:
It should be noted that this is the same scenario of accused Joseph Estrada
conspiring with former Gov. Singson for the collection and receipt of bribes
(jueteng protection money); and of former Gov. Singson involving respondent
Jinggoy Estrada in yet another level of conspiracy in pursuit of the first, i.e., the
regular collection of jueteng protection money for accused Joseph Estrada; and,
respondent Jinggoy Estrada, aware of the details of the conspiracy between
accused Joseph Estrada and Gov. Singson, agreeing to remit the greater part of his
collection of bribes to accused Joseph Estrada as its ultimate beneficiary. Thus,
respondent Jinggoy Estrada reached an agreement with former Gov. Singson,
executed the plan and participated in furtherance of the conspiracy for the receipt
and collection of jueteng protection money, i.e., collecting P3 Million
in jueteng protection money every month; remitting P2 Million thereof to former
Gov. Singson for delivery to accused Joseph Estrada and retaining P1 Million
thereof for himself.
Similarly, therefore, respondent Jinggoy Estrada should have been denied bail
since he is as guilty and liable as accused Joseph Estrada for the non-bailable
offense of Plunder.[18]

As we see it, the rulings in Castelo and Ty Sui Wong are not on all-fours applicable
to and of governing sway to the issue of the propriety of revoking Jinggoys release
on bail.
As it were, the petitioner erroneously equates the provisional grant of bail to
respondent Jinggoy to his virtual acquittal in Criminal Case No. 26558. Petitioner
is wrong. Castelo and Ty Sui Wong contextually dealt with the guilt of culprits
therein for the crimes of murder after all the evidence had been adduced. Unlike in
this proceeding, the propriety of a grant of bail, given the evidence for or against
the bail application, was not an issue in Castelo and Ty Sui Wong. And in the
present case, respondent Sandiganbayan is still in the process of determining the
facts and merits of the main case. In the words of the public respondent:
 As a cautionary parting word, it must be categorically stated herein that in making
the above pronouncements, this Court [Sandiganbayan] is not making any
judgment as to the final outcome of this case either with respect to movant
[Jinggoy] or with respect to accused Estrada. This Court [Sandiganbayan] is
simply called to determine whether, at this stage, the evidence of movant's guilt is
strong as to warrant his temporary release on bail. xxx.[19]

Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges,
which necessarily implies that the evidence of his guilt is strong, would be
tantamount to pre-empting the Sandiganbayans ongoing determination of the facts
and merits of the main case.
Petitioners second and third arguments focus on the possible degrees of
participation of Jinggoy in the crime of Plunder. Noticeably, both arguments, if
pursued to their respective logical conclusions, tend to cancel each other out, one
leading as it were to a direction quite the opposite of the other. For while the
second argument attempts to establish an implied conspiracybetween Jinggoy and
his father - hence, the guilt of one is the guilt of the other - the third argument
eschews the idea of conspiracy, but respondent Jinggoy is nonetheless equally
guilty as President Estrada because of his indispensable cooperation and/or direct
participation in the crime of Plunder.
By statutory definition, conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.
[20]
Venturing into the gray areas of the concept of conspiracy, petitioner cites the
following obiter defining implied conspiracy, thus:
When by their acts, two or more persons proceed toward the accomplishment of
the same felonious object, with each doing his act, so that their acts though
seemingly independent were in fact connected, showing a closeness of formal
association and concurrence of sentiment, conspiracy may be inferred.[21]
Admittedly, direct proof is not essential to establish conspiracy. Since by its
nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct
evidence. Consequently, the presence of the concurrence of minds which is
involved in conspiracy may be inferred from proof of facts and circumstances
which, taken together, apparently indicate that they are merely parts of some
complete whole.If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so
that their combined acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a concurrence
of sentiment, a conspiracy may be inferred though no actual meeting among them
to concert is proved.That would be termed an implied conspiracy.[22]

From the above pronouncements, petitioner then proceeds to present voluminous

documents and transcripts of stenographic notes purporting to prove that Jinggoy
had been deep inside the web of implied conspiracy under the second argument of
this petition. From the implied conspiracy theory, it then shifts gears to embrace
the equally guilty hypothesis under the fall-back third argument.
Regardless, however, of whatever legal strategy petitioner may have in mind, the
fundamental principle that the Court is not a trier of facts remains. Petitioners
second and third arguments are to be sure relevant to the proceedings for the grant
or denial of bail that were pending before in the Sandiganbayan. They are of little
moment here where the only issue now is whether or not there was grave abuse of
discretion on the part of the Sandiganbayan in granting bail to the private
respondent.
With the view we take of this case, the respondent court did not commit grave
abuse of discretion in issuing its assailed resolutions, because the grant of bail
therein is predicated only on its preliminary appreciation of the evidence adduced
in the bail hearing to determine whether or not deprivation of the right to bail is
warranted. Needless to stress, a grant of bail does not prevent the trier of facts, the
same Anti-Graft Court, from making a final assessment of the evidence after full
trial on the merits. As jurisprudence teaches:
xxx Such appreciation [of evidence] is at best preliminary and should not prevent
the trial judge from making a final assessment of the evidence before him after
full trial. It is not an uncommon occurrence that an accused person granted bail is
convicted in due course. [23]

Petitioners last argument is, at bottom, an attempt to have the Court reverse in this
case its earlier holding in another case - G.R. No. 148965 - where we stated:
The Amended Information, in its first two paragraphs, charges petitioner
[Jinggoy] and his other co-accused with the crime of plunder. The first paragraph
names all the accused, while the second paragraph describes in general how
plunder was committed and lays down most of the elements of the crime
itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that
constitute the crime and name in particular the co-conspirators of former
President Estrada in each predicate act. The predicate acts alleged in the said
four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A.
No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several
instances, money from illegal gambling, in consideration of toleration or
protection of illegal gambling, and expressly names petitioner [Jinggoy] as
one of those who conspired with former President Estrada in committing the
offense. This predicate act corresponds with the offense described in item [2] of
the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the
predicate act of diverting, receiving or misappropriating a portion of the tobacco
excise tax share allocated for the province of Ilocos Sur, which act is the offense
described in item [1] in the enumeration in Section 1 (d) of the law. This sub-
paragraph does not mention petitioner but instead names other conspirators of the
 former President. Sub-paragraph (c) alleged two predicate acts that of ordering the
(GSIS) and the (SSS) to purchase shares of stock of Belle Corporation, and
collecting or receiving commissions from such purchase from the Belle
Corporation which became part of the deposit in the Jose Velarde account at the
Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the
enumeration of R.A. No. 7080, and was allegedly committed by the former
President in connivance with John Does and Jane Does. Finally, sub-paragraph (d)
alleged the predicate act that the former President unjustly enriched himself from
commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and
deposited the same under his account name Jose Velarde at the Equitable-PCI
Bank. This act corresponds to the offense under item [6] in the enumeration of
Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all the
accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired
with former President Estrada to enable the latter to amass, accumulate or acquire
ill-gotten wealth . As the Amended Information is worded, however, it is not
certain whether the accused in sub-paragraphs (a) to (d) conspired with each
other to enable the former President to amass the subject ill-gotten wealth. In
light of this lack of clarity, petitioner cannot be penalized for the conspiracy
entered into by the other accused with the former President as related in the
second paragraph of the Amended Information in relation to its sub-paragraphs
(b) to (d). We hold that petitioner can be held accountable only for the
predicate acts [illegal gambling] he allegedly committed as related in sub-
paragraph (a) of the Amended Information which were allegedly done in
conspiracy with the former President whose design was to amass ill-gotten
wealth amounting to more than P4 billion.[24] (Emphasis added.)
Obviously hoping to maneuver around the above ruling so as to implicate
individual respondent for predicate acts described in sub-paragraphs (b), (c)
and (d) of the Amended Information, petitioner now argues:
It should be emphasized that in the course of the proceedings in the instant case,
respondent Jinggoy Estrada waived the benefit of the said ruling and opted,
instead, to participate, as he did participate and later proceeded to cross-examine
witnesses whose testimonies were clearly offered to prove the other constitutive
acts of Plunder alleged in the Amended Information under sub-paragraphs b, c
and d.[25]

We disagree.
At bottom, the petitioner assumes that the ruling accorded benefits to respondent
Jinggoy that were inexistent at the start of that case. But no such benefits were
extended, as the Court did not read into the Amended Information, as couched,
something not there in the first place. Respondent Jinggoys participation, if that be
the case, in the proceedings involving sub-paragraphs b, c and d, did not change
the legal situation set forth in the aforequoted portion of the Courts ruling in G.R.
No. 148965. For when it passed, in G.R. No. 148965, upon the inculpatory acts
envisaged and ascribed in the Amended Information against Jinggoy, the Court
merely defined what he was indicted and can be penalized for. In legal jargon, the
Court informed him of the nature and cause of the accusation against him, a right
guaranteed an accused under the Constitution.[26] In fine, all that the Court
contextually did in G.R. No. 148965 was no more than to implement his right to be
informed of the nature of the accusation in the light of the filing of the Amended
Information as worded. If at all, the Courts holding in G.R. No. 148965 freed
individual respondent from the ill effects of a wrong interpretation that might be
given to the Amended Information.
In all, the Court rules that public respondent Sandiganbayan (Special Division) did
not commit grave abuse of discretion when, after conducting numerous bail
hearings and evaluating the weight of the prosecutions evidence, it determined that
the evidence against individual respondent was not strong and, on the basis of that
determination, resolved to grant him bail.
As a final consideration, the Court notes a statement made by the respondent court
which adds an appropriate dimension to its resolve to grant bail subject of this
recourse. Wrote that court in its assailed resolution of March 6, 2003:
xxx Corollarily, it is not amiss to state that, at this time, there looms the possibility
that, in case of conviction, [respondent Jinggoys] criminal liability would
probably not warrant the death penalty or reclusion perpetua. (Underscoring in
the original; Words in bracket added).

WHEREFORE, the instant petition is DISMISSED.

No pronouncement as to costs.
SO ORDERED.
PEOPLE OF THE G.R. No. 149723
PHILIPPINES,
Petitioner, Present:

PANGANIBAN, CJ., Chairperson,

- versus - YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR. and
CHICO-NAZARIO, JJ.
VICTOR KEITH
FITZGERALD, Promulgated:
Respondent. October 27, 2006

x------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Assailed by way of Petition for Review on Certiorari under Rule 45 of the Rules
of Court is the August 31, 2001 Resolution [1] of the Court of Appeals (CA) in CA-
G.R. CR No. 20431 which granted the Motion for Bail [2] of accused-appellant,
herein respondent Victor Keith Fitzgerald, (Fitzgerald).

The facts are of record.

An Information filed with the Regional Trial Court (RTC), Branch
75, Olongapo City and docketed as Criminal Case No. 422-94, charged Fitzgerald,
an Australian citizen, with Violation of Art. III, Section 5, paragraph (a),
subparagraph (5) of Republic Act (R.A.) No. 7610, [3] allegedly committed as
follows:

That sometime in the month of September 1993, in the City of

Olongapo, Zambales, Philippines and within the jurisdiction of this
Honorable Court, said accused VICTOR KEITH FITZGERALD,
actuated by lust, and by the use of laced drugs (vitamins) willfully,
 unlawfully and feloniously induced complainant AAA, [4] a minor, 13
years of age, to engage in prostitution by then and there showering said
AAA with gifts, clothes and food and thereafter having carnal
knowledge of her in violation of the aforesaid law and to her damage and
prejudice.[5]

After trial and hearing, the RTC rendered a Decision dated May 7, 1996, the
decretal portion of which reads:

WHEREFORE, finding the accused Victor Keith Fitzgerald GUILTY

beyond reasonable doubt of the offense of Violation of Section 5,
Paragraph (a) sub-paragraph 5 of Republic Act No. 7610, he is hereby
sentenced to suffer an indeterminate prison term of eight (8) years and
one (1) day of prision mayor as minimum, to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal as maximum, with all
the accessory penalties attached therewith; and to indemnify the private
complainant AAA the amounts of P30,000.00 as moral damages
and P20,000.00 as exemplary damages.

The Lingap Center of the Department of Social Welfare and

Development (DSWD) in Olongapo City shall hold in trust the said
awards and dispose the same solely for the rehabilitation and education
of AAA, to the exclusion of her mother and her other relatives.

The accused under Article 29 of the Revised Penal Code shall be

credited in full of his preventive imprisonment if he has agreed
voluntarily in writing to abide by the same disciplinary rules imposed
upon convicted prisoners, otherwise to only 4/5 thereof.

Upon completion of the service of his sentence, the accused shall be

deported immediately and forever barred from entry to the Philippines.

In Criminal Case No. 419-94 for Rape, the accused is acquitted.

SO ORDERED.[6]
Fitzgerald applied for bail which the RTC denied in an Order dated August 1,
1996, which reads:

xxxx
 In fine, on the basis of the evidence adduced by the Prosecution
during the hearing on the bail petition, the Court is of the considered
view that the circumstances of the accused indicate probability of flight
and that there is undue risk that the accused may commit a similar
offense, if released on bail pending appeal.

WHEREFORE, and viewed from the foregoing considerations, the

Petition for Bail pending appeal is DENIED.

SO ORDERED.[7]

Fitzgerald appealed to the CA which, in a Decision [8] dated September 27,

1999, affirmed the RTC Decision, thus:

IN VIEW WHEREOF, with the modification that the penalty imposed on

the accused-appellant is imprisonment of Fourteen (14) years, Eight (8)
months and One (1) day of Reclusion Temporal to Twenty (20) years and
One (1) day of Reclusion Perpetua, the decision of the court a quo is
hereby AFFIRMED.

SO ORDERED.[9]
Fitzgerald filed a Motion for New Trial [10] and a Supplemental to Accuseds
Motion for New Trial[11] on the ground that new and material evidence not
previously available had surfaced. The CA granted the Motion for New Trial in a
Resolution dated August 25, 2000, to wit:

WHEREFORE, the appellants Motion for New Trial dated October 14,
1999 is GRANTED. The original records of this case is hereby
REMANDED to the Presiding Judge of the Regional Trial Court of
Olongapo City Branch 75 who is DIRECTED to receive the new
evidence material to appellants defense within sixty days from receipt
and thereafter to submit to this Court the said evidence together with
the transcript of stenographic notes together with the records of the
case within ten (10) days after the reception of evidence. The Motion to
Transfer appellant to the National Penitentiary is DENIED. [12] (Emphasis
ours)

The People (petitioner) filed a Motion for Reconsideration[13] from the August 25,
2000 CA Resolution while Fitzgerald filed a Motion to Fix Bail with
Manifestation.[14] Both Motions were denied by the CA in its November 13,
2000 Resolution.[15] In denying Fitzgeralds bail application, the CA held:

[T]his Court hereby RESOLVES to:

xxxx

2. DENY accused-appellants Motion to Fix Bail with

Manifestation, pursuant to the provisions of Section 7, Rule 114 of the
Rules of Court which provides:

Sec. 7. Capital Offense or an offense punishable by

reclusion perpetua or life imprisonment, not bailable. No
person charged with a capital offense, or an offense
punishable by reclusion perpetua or life
imprisonment when evidence of guilt is strong shall be
admitted to bail regardless of the stage of the criminal
procecution.

In the case at bar, the maximum imposable penalty in accordance with

Republic Act 7610 otherwise known as the Special Protection of
Children against Child Abuse, Exploitation and Discrimination Act
is reclusion perpetua. As it is, the evidence of guilt is strong, hence, We
hold that his motion for bail cannot be granted at this point.

With regard to his alleged physical condition, let it be stressed that

accused-appellant is not precluded from seeking medical attention if
the need arises provided the necessary representations with the proper
authorities are made.

SO ORDERED.[16] (Emphasis ours)

The People filed with this Court a Petition for Review on Certiorari[17] docketed as
G.R. No. 146008 questioning the August 25, 2000 and November 13, 2000 CA
Resolutions. The petition was dismissed in a Resolution [18] dated January 15, 2001,
which became final and executory on May 2, 2001.[19]
Meanwhile, on December 3, 2000, Fitzgerald filed with the CA a Motion for Early
Transmittal of the Records and for the Re-Examination of the Penalty Imposed,
and a Motion for Bail.[20] The People filed its Comment[21] to both Motions.

On August 31, 2001, the CA issued the herein assailed Resolution[22] granting
Fitzgeralds bail application, thus:

xxxx

Be that as it may, while We maintain that, as it is, the evidence of guilt

is strong, We have taken a second look at appellants plea for temporary
liberty considering primarily the fact that appellant is already of old
age[23] and is not in the best of health. Thus, it is this Courts view that
appellant be GRANTED temporary liberty premised not on the grounds
stated in his Motion for Bail but in the higher interest of substantial
justice and considering the new trial granted in this case. Accordingly,
appellant is hereby DIRECTED to post a bail bond in the amount
of P100,000.00 for his temporary liberty provided he will appear in any
court and submit himself to the orders and processes thereof if and when
required to do so. The appellant is likewise refrained from leaving the
country now or in the future until this case is terminated. Accordingly,
the Bureau of Immigration and Deportation is ORDERED to include
appellant in its hold departure list xxx.

xxxx

SO ORDERED.[24] (Emphasis ours)

Thereafter, the RTC ordered Fitzgeralds temporary release on

September 4, 2001 upon his filing a cash bond in the amount of P100,000.00.[25]

Hence, the People filed this Petition to have the August 31, 2001 CA Resolution
annulled and set aside. Petitioner argues that the CA erred in granting respondent
Fitzgeralds Motion for Bail despite the fact that the latter was charged with a crime
punishable by reclusion perpetua and the evidence of his guilt is strong.[26] It also
questions the jurisdiction of the CA to act on said Motion, considering that the case
had been remanded to the RTC for new trial.[27]
In his Comment and Memorandum, respondent counters that the grant of new trial
negated the previous findings of the existence of strong evidence of his guilt;
[28]
and justifies his provisional release on humanitarian grounds, citing as an
extraordinary circumstance his advanced age and deteriorating health.[29]

The petition is meritorious.

We resolve first the preliminary question of whether the CA, after issuing
its August 25, 2000 Resolution granting a new trial, still had jurisdiction to act on
respondents Motion to Post Bail. Our ruling on this matter, however, shall be
limitted to the effect of the August 25, 2000 CA Resolution on the latters
jurisdiction; it shall have no bearing on the merits of said Resolution as this has
been decided with finality in G.R. No. 146008.

According to petitioner, considering that the August 25, 2000 CA Resolution,

referring the case to the RTC for new trial, had become final and executory on May
2, 2001 when this Court denied its petition for review in G.R. No. 146008, then,
when the CA issued the August 31, 2001 Resolution granting respondent bail, it
had been stripped of jurisdiction over the case.[30]

Petitioner is mistaken.

When this Court grants a new trial, it vacates both the judgment of the trial court
convicting the accused[31] and the judgment of the CA affirming it, [32] and remands
the case to the trial court for reception of newly-discovered evidence and
promulgation of a new judgment,[33] at times with instruction to the trial court to
promptly report the outcome.[34] The Court itself does not conduct the new trial for
it is no trier of facts.[35]

However, when the CA grants a new trial, its disposition of the case may differ,
notwithstanding Sec. 1,[36] Rule 125 of the 2000 Rules on Criminal Procedure
which provides for uniformity in appellate criminal procedure between this Court
and the CA. Unlike this Court, the CA may decide questions of fact and mixed
questions of fact and law.[37] Thus, when it grants a new trial under Sec. 14, Rule
124, it may either (a) directly receive the purported newly-discovered evidence
under Sec. 12,[38] or (b) refer the case to the court of origin for reception of such
evidence under Sec. 15.[39] In either case, it does not relinquish to the trial court
jurisdiction over the case; it retains sufficient authority to resolve incidents in the
case and decide its merits.

Now then, the CA, in its August 25, 2000 Resolution, ordered: first, the remand of
the original records of the case to the RTC; second, that the RTC receive the new
evidence material to appellants defense within 60 days from receipt of the original
records; and third, that the RTC submit to it the said evidence together with the
transcript of the case within 10 days after reception of evidence. [40] From the
foregoing dispostion, it is evident that the CA retained appellate jurisdiction over
the case, even as it delegated to the RTC the function of receiving the respondents
newly-discovered evidence. The CA therefore retained its authority to act on
respondents bail application. Moreso that the the original records of the case had
yet to be transmitted to the RTC when respondent filed his bail application and the
CA acted on it.

With that procedural matter out of the way, we now focus on the substantive
issue of whether the CA erred when it allowed respondent to bail.

The right to bail emenates from of the right to be presumed innocent. It is

accorded to a person in the custody of the law who may, by reason of the
presumption of innocence he enjoys,[41] be allowed provisional liberty upon filing
of a security to guarantee his appearance before any court, as required under
specified conditions.[42]

Implementing Sec. 13,[43] Article III of the 1987 Constitution, Sections

4[44] and 5, Rule 114 of the 2000 Rules of Criminal Procedure set forth substantive
and procedural rules on the disposition of bail applications. Sec. 4 provides
that bail is a matter of right to an accused person in custody for an offense not
punishable by death, reclusion perpetua or life imprisonment,[45] but a matter of
discretion on the part of the court, concerning one facing an accusation for an
offense punishable by death, reclusion perpetua or life imprisonment when the
evidence of his guilt is strong.[46] As for an accused already convicted and
sentenced to imprisonment term exceeding six years, bail may be denied or
revoked based on prosecution evidence as to the existence of any of the
circumstances under Sec. 5, paragraphs (a) to (e), to wit:
 Sec. 5. Bail, when discretionary Upon conviction by the Regional
Trial Court of an offense not punishable by death, reclusion perpetua,
or life imprisonment, admission to bail is discretionary. The application
for bail may be filed and acted upon by the trial court despite the filing
of a notice of appeal, provided it has not transmitted the original record
to the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the offense from non-
bailable to bailable, the application for bail can only be filed with and
resolved by the appellate court.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the pendency of the
appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment

exceeding six (6) years, the accused shall be denied bail, or his bail shall
be cancelled upon a showing by the prosecution, with notice to the
accused, of the following or other similar circumstances: (a) That he is a
recidivist, quasi-recidivist, or habitual delinquent, or has committed the
crime aggravated by the circumstance of reiteration; (b) That he has
previously escaped from legal confinement, evaded sentence, or violated
the conditions of his bail without valid justification; (c) That he
committed the offense while under probation, parole, or conditional
pardon; (d) That the circumstances of his case indicate the probability of
flight if released on bail; or (e) That there is undue risk that he may
commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party,

review the resolution of the Regional Trial Court after notice to the
adverse party in either case. (Emphasis supplied)
It will be recalled that herein respondent was charged with violation of
Section 5, par. (a), sub-paragraph (5), Article III of R.A. No. 7610, a crime which
carries the maximum penalty of reclusion perpetua. He was later convicted by the
RTC for a lesser crime which carried a sentence of imprisonment for an
indeterminate term of eight (8) years and one (1) day of prision mayor as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal as maximum.

These circumstances are not altered when the CA granted a new trial. [47] As
already discussed, the CA retained appellate jurisdiction over the case even as it
ordered the remand of the original records thereof to the RTC for reception of
evidence. In retaining appellate jurisdiction, it set aside only its own September 27,
1999 Decision but left unaltered the May 7, 1996 RTC Decision. In fact, in
its August 31, 2001 Resolution, the CA emphasized:

As we have pointed out earlier, the propriety of appellants conviction of

the offense charged as well as the penalty imposed thereto should be
resolved during the appreciation of the new trial after considering the
new evidence which appellant insist would prove his innocence. [48]

The May 7, 1996 RTC Decision, therefore, remained operative. And under
said Decision, respondent stood sentenced to an imprisonment term exceeding six
years.

Moreover, both the RTC and CA were unanimous in their findings of the
existence of strong evidence of the guilt of respondent. [49] These findings were not
overturned when the CA granted a new trial. Under Section 6 (b), Rule 121, the
grant of a new trial allows for reception of newly-discovered evidence but
maintains evidence already presented or on record.And if there has been a finding
that evidence is strong and sufficient to bar bail, that too subsists unless, upon
another motion and hearing, the prosecution fails to prove that the evidence against
the accused has remained strong.[50] In the present case, no new evidence had since
been introduced, nor hearing conducted as would diminish the earlier findings of
the RTC and CA on the existence of strong evidenc against respondent.

In sum, the circumstances of the case are such, that for respondent, bail was
not a matter of right but a mere privilege subject to the discretion of the CA to be
exercised in accordance with the stringent requirements of Sec. 5, Rule
114. And Sec. 5 directs the denial or revocation of bail upon evidence of the
existence of any of the circumstances enumerated therein [51] such as
those indicating probability of flight if released on bail or undue risk that the
accused may commit another crime during the pendency of the appeal.

As it is, however, the CA, in its August 31, 2001 Resolution, admitted
respondent to bail based, xxx not on the grounds stated in his Motion for Bail xxx,
but xxx primarily [on] the fact that [he] is already of old age and is not in the best
of health xxx, and notwithstanding its finding that xxx as it is, the evidence of guilt
is strong xxx.[52] The Resolution disregarded substantive and procedural
requirements on bail.

It is bad enough that the CA granted bail on grounds other than those stated
in the Motion filed by respondent; it is worse that it granted bail on the mere claim
of the latters illness.Bail is not a sick pass for an ailing or aged detainee or prisoner
needing medical care outside the prison facility. A mere claim of illness is not a
ground for bail.[53] It may be that the trend now is for courts to permit bail for
prisoners who are seriously sick.[54] There may also be an existing proposition for
the selective decarceration of older prisoners based on findings that recidivism
rates decrease as age increases.[55] But, in this particular case, the CA made no
specific finding that respondent suffers from an ailment of such gravity that his
continued confinement during trial will permanently impair his health or put his
life in danger. It merely declared respondent not in the best of health even when the
only evidence on record as to the latters state of health is an unverified medical
certificate stating that, as of August 30, 2000, respondents condition required him
to xxx be confined in a more sterile area xxx.[56] That medical recommendation was
even rebuffed by the CA itself when, in its November 13, 2000 Resolution, it held
that the physical condition of respondent does not prevent him from seeking
medical attention while confined in prison.[57]

Moreover, there is a finding of record on the potential risk of respondent

committing a similar offense. In its August 1, 1996 Order, the RTC noted that
the circumstances of respondent indicate an undue risk that he would commit a
similar offense, if released on bail pending appeal. [58] The RTC explained its
findings thus:

Dr. Aida Muncada, a highly competent Psychiatrist, testified that

phedophilia is a state of sexual disorder and sexual dysfunction. It is
intense and recurrent. The possibility of the commission of a similar
offense for which the accused was convicted is great if the accused will
be exposed to stress and if an opportunity to commit it lurks. [59]

The foregoing finding was not traversed or overturned by the CA in its questioned
Resolution. Such finding, therefore, remains controlling. It warranted the outright
denial of respondents bail application. The CA, therefore, erred when it granted
respondents Motion for Bail.

WHEREFORE, the petition is GRANTED and the August 31, 2001 CA

Resolution ANNULLED and SET ASIDE. The bail bond posted by respondent
is CANCELLED. Let an ORDER OF ARREST ISSUE against the person of the
accused, Victor Keith Fitzgerald.

No costs.

SO ORDERED.
G.R. Nos. L-32951-2 September 17, 1971

RICARDO DE LA CAMARA, petitioner,

vs.
HON. MANUEL LOPEZ ENAGE, Presiding Judge of the Court of First Instance of Agusan del
Norte and Butuan City (Branch II), respondents.

Demosthenes Mediante, Puro Velez, Francisco Fabe, Federico del Puerto and Pelaez, Jalandoni &
Jamir for petitioner.

Hon. Manuel Lopez Enage in his own behalf.

RESOLUTION

FERNANDO, J.:

An order of respondent Judge Manuel Lopez Enage, fixing the bail of petitioner, Ricardo de la
Camara, in the sum of P1,195,200.00 is assailed in this petition for certiorari as repugnant to the
constitutional mandate prohibiting excessive bail. 1 The merit of the petition on its face is thus apparent.
Nonetheless, relief sought setting aside the above order by reducing the amount of bail to P40,000.00
cannot be granted, as in the meanwhile, petitioner had escaped from the provincial jail, thus rendering
this case moot and academic. It is deemed advisable, however, for the guidance of lower court judges, to
set forth anew the controlling and authoritative doctrines that should be observed in fixing the amount of
the bail sought in order that full respect be accorded to such a constitutional right.

The facts are not in dispute. Petitioner, Ricardo, de la Camara, Municipal Mayor of Magsaysay,
Misamis Oriental, was arrested on November 7, 1968 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., at Nato, Esperanza, Agusan del Sur, on August 21, 1968. Thereafter, on
November 25, 1968, the Provincial Fiscal of Agusan filed with the Court of First Instance a case for
multiple frustrated murder 2 and another for multiple murder 3 against petitioner, his co-accused
Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid occurrence. Then on January 14,
1969, came an application for bail filed by petitioner with the lower court, premised on the assertion that
there was no evidence to link him with such fatal incident of August 21, 1968. He likewise mantained his
innocence. Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution resting
its case on July 10, 1969. As of the time of the filing ofthe petition, the defense had not presented its
evidence.

Respondent Judge, on August 10, 1970, issued an order granting petitioner's application for bail,
admitting that there was a failure on the part of the prosecution to prove that petitioner would flee
even if he had the opportunity,but fixed the amount of the bail bond at the excessive amount of
P1,195,200.00,the sum of P840,000.00 for the information charging multiple murder and
P355,200.00 for the offense of multiple frustrated murder. Then came the allegation that on August
12, 1970, the Secretary of Justice, Vicente Abad Santos, upon being informed of such order, sent a
telegram to respondent Judgestating that the bond required "is excessive" and suggesting that a
P40,000.00bond, either in cash or property, would be reasonable. There was likewise a motion for
reconsideration to reduce the amount. Respondent Judge however remained adamant. Hence this
petition.

The answer filed by respondent Judge on March 5, 1971 set forth the circumstances concerning the
issuance of the above order and the other incidents of the case, which, to his mind would disprove
any charge that he wasguilty of grave abuse of discretion. It stressed, moreover, that the
challengedorder would find support in circulars of the Department of Justice given sanction by this
Court. He sought the dismissal of the petition for lack of merit.

In the hearing of the case set for March 31, 1971, there was no appearance for both the petitioner
and respondents with the former, upon written motion, being given thirty days within which to submit
a memorandum in lieu of oral argument, respondent Judge in turn having the same period from
receipt thereofto file his reply. Such a memorandum as duly submitted by petitioner on April 6, 1971.

Instead of a reply, respondent Judge submitted, on May 26, 1971, a supplemental answer wherein
he alleged that petitioner escaped from the provincial jail on April 28, 1971 and had since then
remained at large. There was a reiteration then of the dismissal of this petition for lack of merit,
towhich petitioner countered in a pleading dated June 7, 1971, and filed with this Court the next day
with this plea: "The undersigned counsel, therefore, vehemently interpose opposition, on behalf of
petitioner, to respondent's prayer for dismissal of the present petition for lack of merit. For, the issue
in this case is not alone the fate of petitioner Ricardo de la Camara. The issue in the present petition
that calls for the resolution of this Honorable Tribunal is the fate of countless other Ricardo de la
Camaras who maybe awaiting the clear-cut definition and declaration of the power of trial courts in
regard to the fixing of bail." 4

While under the circumstances a ruling on the merits of the petition for certiorari is not warranted,
still, as set forth at the opening of this opinion, the fact that this case is moot and academic should
not preclude thisTribunal from setting forth in language clear and unmistakable, the obligationof
fidelity on the part of lower court judges to the unequivocal command of theConstitution that
excessive bail shall not be required.

1. Before conviction, every person is bailable except if charged with capital offenses when the
evidence of guilt is strong. 5 Such a right 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. Thereby a regimeof liberty is honored in
the observance and not in the breach. It is not beyondthe realm of probability, however, that a person
charged with a crime, especially so where his defense is weak, would just simply make himself scarceand
thus frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be
thwarted. It is, in the language of Cooley, a "mode short of confinement which would, with reasonable
certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor is there, anything
unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong,
as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence,
an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted.
2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that
is excessive. So the Constitution commands. It is understandable why. If there were no such
prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention
of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United
States Constitution limits itself to a prohibition against excessive bail. 7 As construed in the latest
American decision, "the sole permissible function of money bail is to assure the accused's presence at
trial, and declared that "bail set at a higher figure than an amount reasonablycalculated to fulfill thus
purpose is "excessive" under the Eighth Amendment." 8

Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the
amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for
the information charging multiple murder, there being fourteen victim, and the sum of P355,200 for
the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of
constitutional provision. Under the circumstances, there being only two offenses charged, the
amount required as bail could not possibly exceed P50,000.00 for the information for murder and
P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that
the Department of Justice did recomend the total sum of P40,000.00 for the twooffenses.

3. There is an attempt on the part of respondent Judge to justify what, on its face, appears to be
indefensible by the alleged reliance on Villaseor v. Abano. 9 The guidelines in the fixing of bail was
there summarized, in the opinion of Justice Sanchez, 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 wasa fugitive from justice when arrested;
and (10) if the accused is under bond for appearance at trial in other cases." 10 Respondent Judge,
however, did ignore this decisive consideration appearing at the end of the above opinion: "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 supervisorypowers to provide the
required remedy." 11

No attempt at rationalization can therefore give a color of validity to the challenged order. There is
grim irony in an accused being told that he has a right to bail but at the same time being required to
post such an exorbitant sum. What aggravates the situation is that the lower court judge would
apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of
respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe
that any person in the position of petitioner would under the circumstances be unable to resists
thoughts of escaping from confinement, reduced as he must have been to a stateof desperation. In
the same breath that he was told he could be bailed out, the excessive amount required could only
mean that provisional liberty would bebeyond his reach. It would have been more forthright if he
were informed categorically that such a right could not be availed of. There would have beenno
disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise
to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." 12 It
is no wonder that the resulting frustration left resentment and bitterness in its wake.Petitioner's
subsequent escape cannot be condoned. That is why he is not entitled to the relief prayed for. What
respondent Judge did, however, does call for repudiation from this Court.
Nor is there any justification then for imputing his inability to fix a lesser amount by virtue of an
alleged reliance on a decision of this Tribunal. Even if one were charitably inclined, the mildest
characterization of such a result is that there was a clear reading of the Abano opinion when such a
meaning was ascribed to it. No doctrine refinement may elicit approval if to doso would be to reduce
the right to bail to a barren form of words. Not only isthe order complained of absolutely bereft of
support in law, but it flies in the face of common sense. It is not too much to say that it is at war with
thecommand of reason.

With petitioner, however, having escaped from the provincial jail, no ruling can be had on his plea to
nullify the above order.

WHEREFORE, this case is dismissed for being moot and academic. Without pronouncement as to
costs.
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF
APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

DECISION

GONZAGA-REYES, J.:

The right against excessive bail, and the liberty of abode and travel, are being
invoked to set aside two resolutions of the Court of Appeals which fixed bail at
P5,500,000.00 and imposed conditions on change of residence and travel abroad.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was

convicted of estafa by the Regional Trial Court of Pasig City [1] and was sentenced to
four years and two months of prision correccional, as minimum, to eight years
of prision mayor as maximum, in addition to one (1) year for each additional
P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years.
[2]
He filed a notice of appeal, and moved to be allowed provisional liberty under the
cash bond he had filed earlier in the proceedings. The motion was denied by the trial
court in an order dated February 17, 1999.

After the records of the case were transmitted to the Court of Appeals, petitioner
filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused-
Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the
1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General
opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and
be required to secure a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be so until final
judgment is rendered or in case he transfers residence, it must be with prior notice to
the court and private complainant. [3] Petitioner filed a Reply, contending that the
proposed bail of P5,500,000.00 was violative of his right against excessive bail.

The assailed resolution of the Court of Appeals [4], issued on October 6, 1999,
upheld the recommendation of the Solicitor General; thus, its dispositive portion
reads:

WHEREFORE, premises considered, the Motion to Fix Bail For Provisional Liberty
of Accused-Appellant Pending Appeal is hereby GRANTED. Accused-appellant
Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the
amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the
following conditions, viz.:

(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be a resident therein until
final judgment is rendered or in case he transfers residence, it must be with prior notice to
the court;

(2) The Commission of Immigration and Deportation (CID) is hereby directed to issue a hold
departure order against accused-appellant; and

(3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court
for safekeeping until the court orders its return;

(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellants bail
bond, the dismissal of appeal and his immediate arrest and confinement in jail.

SO ORDERED.[5]

A motion for reconsideration was filed, seeking the reduction of the amount of
bail fixed by respondent court, but was denied in a resolution issued on November 25,
1999. Hence, this petition.

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of discretion in fixing

the bail for the provisional liberty of petitioner pending appeal in the amount of
P5.5 million.

The respondent Court of Appeals committed grave abuse of discretion in basing

the bail for the provisional liberty of the petitioner on his civil liability.

The respondent Court of Appeals unduly restricted petitioners constitutional

liberty of abode and travel in imposing the other conditions for the grant of bail.

Petitioner contends that the Court of Appeals, by setting bail at a prohibitory

amount, effectively denied him his right to bail. He challenges the legal basis of
respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of
his civil liability to private complainant Manila Mahogany Marketing Corporation,
and argues that the Rules of Court never intended for the civil liability of the accused
to be a guideline or basis for determining the amount of bail. He prays that bail be
reduced to at least P40,000.00, citing the maximum amount of bail that can be posted
for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to
the amount of bail he posted during the trial of the case. [6]

On the other hand, the Solicitor General maintains that no grave abuse of
discretion could be ascribed to the Court of Appeals for fixing the amount of bail at
P5,500,000.00 considering the severity of the penalty imposed, the weight of the
evidence against petitioner, and the gravity of the offense of which petitioner was
convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to
civil liability but also to the amount of fraud imputed to petitioner. The Solicitor
General further pointed out the probability of flight in case petitioner is released on
bail, it having been established that petitioner was in possession of a valid passport
and visa and had in fact left the country several times during the course of the
proceedings in the lower court. It was also shown that petitioner used different names
in his business transactions and had several abodes in different parts of the country.

As for the conditions imposed by the bail bond, the Solicitor General advanced
that all that the Court of Appeals requires is notice in case of change of address; it
does not in any way impair petitioners right to change abode for as long as the court is
apprised of his change of residence during the pendency of the appeal.

Petitioners case falls within the provisions of Section 5, Rule 114 of the 1997
Rules of Court which states:

SEC. 5. Bail, when discretionary. --- Upon conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life imprisonment,
the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty
under the same bail bond during the period to appeal subject to the consent of the
bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more
than twenty (20) years, the accused shall be denied bail, or his bail previously granted
shall be cancelled, upon a showing by the prosecution, with notice to the accused, of
the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has

committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party.[7]

There is no question that in the present case the Court of Appeals exercised its
discretion in favor of allowing bail to petitioner on appeal. Respondent court stated
that it was doing so for humanitarian reasons, and despite a perceived high risk of
flight, as by petitioners admission he went out of the country several times during the
pendency of the case, for which reason the court deemed it necessary to peg the
amount of bail at P5,500,000.00.

The prohibition against requiring excessive bail is enshrined in the Constitution.

[8]
The obvious rationale, as declared in the leading case of De la Camara vs. Enage,
[9]
is that imposing bail in an excessive amount could render meaningless the right to
bail. Thus, in Villaseor vs. Abao,[10] this Court made the pronouncement that it will not
hesitate to exercise its supervisory powers over lower courts should the latter, after
holding the accused entitled to bail, effectively deny the same by imposing a
prohibitory sum or exacting unreasonable conditions.

xxx There is grim irony in an accused being told that he has a right to bail but at
the same time being required to post such an exorbitant sum. What aggravates the
 situation is that the lower court judge would apparently yield to the command of
the fundamental law. In reality, such a sanctimonious avowal of respect for a
mandate of the Constitution was on a purely verbal level. There is reason to
believe that any person in the position of petitioner would under the
circumstances be unable to resist thoughts of escaping from confinement, reduced
as he must have been to a state of desperation. In the same breath as he was told
he could be bailed out, the excessive amount required could only mean that
provisional liberty would be beyond his reach. It would have been more forthright
if he were informed categorically that such a right could not be availed of. There
would have been no disappointment of expectations then. It does call to mind
these words of Justice Jackson, a promise to the ear to be broken to the hope, a
teasing illusion like a munificent bequest in a paupers will. xxx [11]

At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure
advises courts to consider the following factors in the setting of the amount of bail:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that
the accused may jump bail, it is certainly not precluded from installing devices to
ensure against the same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically to the court and to
make an accounting of his movements. [12] In the present case, where petitioner was
found to have left the country several times while the case was pending, the Court of
Appeals required the confiscation of his passport and the issuance of a hold-departure
order against him.

Under the circumstances of this case, we find that appropriate conditions have
been imposed in the bail bond to ensure against the risk of flight, particularly, the
combination of the hold-departure order and the requirement that petitioner inform the
court of any change of residence and of his whereabouts. Although an increase in the
amount of bail while the case is on appeal may be meritorious, we find that the setting
of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an
effective denial of petitioners right to bail.

The purpose for bail is to guarantee the appearance of the accused at the trial, [13] or
whenever so required by the court[14] The amount should be high enough to assure the
presence of the accused when required but no higher than is reasonably calculated to
fulfill this purpose.[15] To fix bail at an amount equivalent to the civil liability of which
petitioner is charged (in this case, P5,500,000.00) is to permit the impression that the
amount paid as bail is an exaction of the civil liability that accused is charged of; this
we cannot allow because bail is not intended as a punishment, nor as a satisfaction of
civil liability which should necessarily await the judgment of the appellate court.

At the same time, we cannot yield to petitioners submission that bail in the instant
case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond
Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for
estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20
years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a
circular of the Department of Justice for the guidance of state prosecutors, although
technically not binding upon the courts, merits attention, being in a sense an
expression of policy of the Executive Branch, through the Department of Justice, in
the enforcement of criminal laws. [16] Thus, courts are advised that they must not only
be aware but should also consider the Bail Bond Guide due to its significance in the
administration of criminal justice. [17] This notwithstanding, the Court is not precluded
from imposing in petitioners case an amount higher than P40,000.00 (based on the
Bail Bond Guide) where it perceives that an appropriate increase is dictated by the
circumstances.
 It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114
of the Revised Rules of Criminal Procedure is clear that although the grant of bail on
appeal in non-capital offenses is discretionary, when the penalty imposed on the
convicted accused exceeds six years and circumstances exist that point to the
probability of flight if released on bail, then the accused must be denied bail, or his
bail previously granted should be cancelled. [18] In the same vein, the Court has held
that the discretion to extend bail during the course of the appeal should be exercised
with grave caution and for strong reasons, considering that the accused had been in
fact convicted by the trial court. [19] In an earlier case, the Court adopted Senator
Vicente J. Franciscos disquisition on why bail should be denied after judgment of
conviction as a matter of wise discretion; thus:

The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or innocent,
and therefore, where that uncertainty is removed by conviction it would, generally
speaking, be absurd to admit to bail. After a person has been tried and convicted the
presumption of innocence which may be relied upon in prior applications is rebutted,
and the burden is upon the accused to show error in the conviction. From another
point of view it may be properly argued that the probability of ultimate punishment is
so enhanced by the conviction that the accused is much more likely to attempt to
escape if liberated on bail than before conviction. xxx [20]

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond

reasonable doubt by the RTC, and due to the serious amount of fraud involved,
sentenced to imprisonment for twenty years --- the maximum penalty for estafa by
false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it
cannot be controverted that the Court of Appeals, despite the foregoing considerations
and the possibility of flight still wielded its discretion to grant petitioner bail, the
setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor
factual basis. Guided by the penalty imposed by the lower court and the weight of the
evidence against petitioner, we believe that the amount of P200,000.00 is more
reasonable.

Petitioner also contests the condition imposed by the Court of Appeals that he
secure a certification/guaranty from the Mayor of the place of his residence that he is
a resident of the area and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must be with prior notice to
the court, claiming that the same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him
from leaving the Philippines unless expressly permitted by the court which issued the
order.[21] In fact, the petition submits that the hold-departure order against petitioner is
already sufficient guarantee that he will not escape. Thus, to require him to inform the
court every time he changed his residence is already unnecessary.[22]

The right to change abode and travel within the Philippines, being invoked by
petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states:

The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.

The order of the Court of Appeals releasing petitioner on bail constitutes such
lawful order as contemplated by the above provision. [23] The condition imposed by the
Court of Appeals is simply consistent with the nature and function of a bail bond,
which is to ensure that petitioner will make himself available at all times whenever the
Court requires his presence. Besides, a closer look at the questioned condition will
show that petitioner is not prevented from changing abode; he is merely required to
inform the court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioners bail

pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects,
the resolutions of the Court of Appeals, dated October 6, 1999 and November 25,
1999, respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED.
G.R. No. L-45038 April 30, 1987

MANOTOK REALTY, INC., petitioner,

vs.
THE HON. COURT OF APPEALS and FELIPE MADLANGAWA, respondents.

Romeo J. Calejo for petitioner.

Mantanggot C. Gunigundo for private respondent.

GUTIERREZ, JR., J.:

This is a petition for certiorari by way of appeal seeking to set aside the decision of the Court of
Appeals which upheld the dismissal of the petitioner's complaint for reinvidicatory action with
damages against the private respondent and ordered the petitioner to accept the payment of the
balance of P2,551.85 from said respondent, and thereafter, to execute the corresponding deed of
sale of Lot 227, Block I in favor of the latter.

The private respondent Felipe Madlangawa claims that he has been occupying a parcel of land in
the Clara de Tambunting de Legarda Subdivision since 1949 upon permission being obtained from
Andres Ladores, then an overseer of the subdivision, with the understanding that the respondent
would eventually buy the lot.

On April 2, 1950, the owner of the lot, Clara Tambunting, died and her entire estate, including her
paraphernal properties which covered the lot occupied by the private respondent were placed
under custodia legis.

On April 22, 1950, the private respondent made a deposit for the said lot in the sum of P1,500.00
which was received by Vicente Legarda, husband of the late owner. As evidenced by the receipt
issued by Vicente Legarda, the lot consisted of an area of 240 square meters and was sold at
P30.00 per square meter. There, thus, remained an unpaid balance of P5,700.00 but the private
respondent did not pay or was unable to pay this balance because after the death of the testatrix,
Clara Tambunting de Legarda, her heirs could not settle their differences. Apart from the initial
deposit, no further payments were made from 1950.

On April 28, 1950, Don Vicente Legarda was appointed as a special administrator of the estate.
Meanwhile the private respondent remained in possession of the lot in question.

Subsequently, the petitioner became the successful bidder and vendee of the Tambunting de
Legarda Subdivision consisting of 44 parcels of land spread out in the districts of Tondo and Sta.
Cruz, Manila, pursuant to the deeds of sale executed in its favor by the Philippine Trust Company on
March 13 and 20, 1959, as administrator of the Testate Estate of Clara Tambunting de Legarda, in
Special Proceeding No. 10809 of the Manila probate court. The lot in dispute was one of those
covered by the sale. The Deed of Sale, among others, provided for the following terms and
conditions:

1. The VENDEE assumes the risk and expenses of ejecting the tenants or
squatters on the said parcels of land if it decides to eject them. Any rentals or
damages that may be due or collectible from the said tenants or squatters for the
period subsequent to the date of this deed of sale shall belong to the VENDEE but
rentals due from the said tenants or squatters prior to the execution of this deed of
sale shall belong to the VENDOR.

xxx xxx xxxx x x

3. The VENDEE renounces the right to warranty in case of eviction with the
knowledge of the risks of eviction and assumes its consequences with respect not
only to the lots subject-of the above mentioned cases and claims but also with
respect to any other lots subject of contracts of sale or promises to sell that may
have been executed by the deceased, Clara Tambunting de Legarda and/or Vicente
L. Legarda, and it hereby relieves the estate of Clara Tambunting de Legarda and the
Philippine Trust Company, in its capacity as Administrator thereof, of any and all
liability with respect thereto in case of eviction. All sums of money that have been
paid to the deceased Clara Tambunting de Legarda and/or Vicente L. Legarda and/or
the administrator of Clara Tambunting de Legarda on account of the purchase price
of said lots shall belong to the estate, but any sums of money that are or may be due
as the balance of the purchase price of said lots shall belong to the VENDEE. (pp.
27-28, Rollo).

xxx xxx xxx

In its effort to clear the Tambunting Subdivision of its squatters and occupants, the petitioner caused
the publication of several notices in the Manila Times issues of January 1, 1966 and
the Taliba issues of January 2, and March 16, 1966, advising the occupants to vacate their
respective premises, otherwise, court action with damages would follow. In addition to these notices
by publication, the petitioner sent circulars to the occupants to vacate.

The private respondent was one of the many occupants who refused to vacate the lots they were
occupying, so that on April 26, 1968, the petitioner filed the action below to recover the said lot.

The trial court dismissed the petitioner's action after finding that the Identity of the parcel of land
described in the complaint had not been sufficiently established as the very same piece of land in
the material and physical possession of the private respondent.

On appeal, the respondent Court of Appeals found the Identity of the lot sought to be recovered by
the petitioner to be the same as that in the physical possession of the private respondent and ruled
that the only right remaining to the petitioner is to enforce the collection of the balance because
accordingly, it stepped into the shoes of its predecessor; and that since the area now in possession
of the petitioner which is that involved in the present case is only 115 square meters, the balance
after deducting the deposit of P1,500.00 is P2,551.85, and as per order of the Court of First Instance
of Manila, the said balance should be paid in 18 equal monthly installments.

In this petition, the petitioner maintains that the Court of Appeals committed a reversible error in
holding that the sale by Don Vicente Legarda in favor of the private respondent is valid, binding, and
enforceable against the petitioner.

The petitioner contends that since there is no dispute that the property in question was the
paraphernal property of Clara Tambunting, who died on April 2, 1950, Vicente Legarda had no
authority whatsoever to sell the said property to the private respondent on May 12, 1950 since the
former was appointed as administrator of the estate of Clara Tambunting only on August 28, 1950.
Therefore, the questioned sale could not have bound Clara Tambunting's estate because the vendor
Vicente Legarda neither acted as the owner nor the administrator of the subject property when the
alleged sale took place. As regards the provision in the deed of sale which it executed with the
Philippine Trust Company wherein it bound itself to respect the contracts of sale or promises to sell
that may have been executed by Vicente Legarda and renounced the right to warranty in case of
eviction, the petitioner argues that this re-required respect only for those valid sales executed by the
deceased Clara Tambunting and by persons vested with authority to act on behalf of the estate.

On the other hand, the private respondent contends that the aforequoted provisions of the deed of
sale are a declaration or admission against the interest of the petitioner, and shows that the acts of
Vicente Legarda had been ratified by the Philippine Trust Company and approved by the probate
court. The petitioner, therefore, is allegedly estopped from questioning the authority of Vicente
Legarda in selling the property in dispute.

It is an undisputed fact that the lot in dispute is the paraphernal property of Dona Clara Tambunting
and that at the time of the sale thereof, the owner was already dead. Thus, the only question to be
resolved in this petition is: in what capacity did the husband of the deceased, Don Vicente Legarda,
dispose of the lot?

Articles 136 and 137 of the Civil Code of the Philippines provide:

Art. 136. The wife retains the ownership of the paraphernal property.

Art. 137. The wife shall have the administration of the paraphernal property, unless
she delivers the same to the husband by means of a public instrument empowering
him to administer it.

In this case, the public instrument shall be recorded in the Registry of Property. As for
the movables, the husband shall give adequate security.

There is nothing in the records that wig show that Don Vicente Legarda was the administrator of the
paraphernal properties of Dona Clara Tambunting during the lifetime of the latter. Thus, it cannot be
said that the sale which was entered into by the private respondent and Don Vicente Legarda had its
inception before the death of Dona Clara Tambunting and was entered into by the former for and on
behalf of the latter, but was only consummated after her death. Don Vicente Legarda, therefore,
could not have validly disposed of the lot in dispute as a continuing administrator of the paraphernal
properties of Dona Clara Tambunting.

It is also undisputed that the probate court appointed Don Vicente Legarda as administrator of the
estate only on August 28, 1950, more than three months after the questioned sale had taken place.

We are, therefore, led to the inevitable conclusion that the sale between Don Vicente Legarda and
the private respondent is void ab initio, the former being neither an owner nor administrator of the
subject property. Such being the case, the sale cannot be the subject of the ratification by the
Philippine Trust Company or the probate court. As was held in the case of Arsenal v. Intermediate
Appellate Court (143 SCRA 40, 49):

Under the provisions of the Civil Code, a void contract is inexistent from the
beginning. It cannot be ratified neither can the right to set up the defense of its
illegality be waived. (Art. 1409, Civil Code .

To further distinguish this contract from the other kinds of contract, a commentator
has stated that.

The right to set up the nullity of a void or non-existent contract is not

limited to the parties as in the case of annuable or voidable contracts,
it is extended to third persons who are directly affected by the
contract. (Tolentino, Civil Code of the Philippines, Vol. IV, p. 604,
[1973]).

Any person may invoke the inexistence of the contract whenever

juridical affects founded thereon are asserted against him. (Id. P.
595).

Section 1, Rule 89 of the Revised Rules of Court provides for the procedure on how a property in
custodia legis can be disposed of by sale:

Order of sale of personalty. Upon the application of the executor or administrator,

and on written notice to the heirs and other persons interested, the court may order
the whole or a part of the personal estate to be sold, if it appears necessary for the
purpose of paying debts, expenses of administration, or legacies, or for the
preservation of the property.

After the appointment of Don Vicente Legarda as administrator of the estate of Dona Clara
Tambunting, he should have applied before the probate court for authority to sell the disputed
property in favor of the private respondent. If the probate court approved the request, then Don
Vicente Legarda would have been able to execute a valid deed of sale in favor of the respondent.
Unfortunately, there was no effort on the part of the administrator to comply with the above-quoted
rule of procedure nor on that of the respondent to protect his interests or to pay the balance of the
installments to the court appointed administrator.
As was held in Kline v. Shoup (226 Pacific Reporter 729, 731), which we find applicable in the case
at bar:

There are, however, certain steps to be taken in the administration of an estate which
the law deems of sufficient importance to have placed without the power of the
probate court to effect under the jurisdiction acquired over the general subject matter
by law and over the estate and those interested therein, by the filing and due service
of the petition for the appointment of an administrator and the order of appointment
and issuance of letters, and at least one of such steps is the sale of the real property
of an estate for the payment of the debts of the deceased. C.S. 7603, provides that

No sale of any property of an estate of a decedent is valid unless made under order
of the probate court. ...

From the foregoing, it cannot be denied that the law recognizes the issuance of an
order of sale as an indispensable requisite in effecting a valid sale of the property of
a decedent's estate. ...

Considering the location of the disputed lot, we find a monthly rental of Twenty Centavos (P0.20) per
square meter to be more than fair to the private respondent for his use of the premises. The
petitioner, however, should return the P 1,500.00 received by Mr. Legarda, with legal interest, to the
respondent.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby REVERSED
and SET ASIDE. The private respondent is ordered to SURRENDER the material and physical
possession of Lot No. 277, Block I to the petitioner and to pay the latter the rentals as stated above
from May, 1950 until he surrenders the said lot. The petitioner shall reimburse the private respondent
the amount of P1,500.00 with legal interest from May, 1950 or offset said amount from the rentals
due to it. Costs against the private respondent.

SO ORDERED.
G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,

vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court
of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs.
Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June
1990 denying reconsideration, be set aside.

On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.

On 26 January 1988, or more than two (2) years after the filing of the Information, respondent
People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone abroad several
times without the necessary Court approval resulting in postponements of the arraignment and
scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the
Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and
the Commission on Immigration to prevent Petitioner from leaving the country. This order was based
primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the
accused has not yet been arraigned because he has never appeared in Court on the dates
scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr.
has left the country and has gone abroad without the knowledge and permission of this Court"
(Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988.

Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990.
Hence, this Petition for Review filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we resolved to give due course and
to decide the case.

Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4
April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court,
even on grounds other than the "interest of national security, public safety or public health."
We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent
that it was filed long after the filing of the Information in 1985 and only after several arraignments
had already been scheduled and cancelled due to Petitioner's non-appearance. In fact, said Motion
to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and
conformed to by respondent Appellate Court is the concurrence of the following circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date
(28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were
cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for
accused Silverio's failure to appear had invariably been because he is abroad in the United
States of America;

2. Since the information was filed, until this date, accused Silverio had never appeared in
person before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had
been issued against him all for the same reason failure to appear at scheduled
arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more
than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim.
Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not
based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the
pendency of a Motion to Quash came about only after several settings for arraignment had been
scheduled and cancelled by reason of Petitioner's non-appearance.

2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds other than the
"interest of national security, public safety or public health."

To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been
cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his
failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for
violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given
for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon
his appearance before any court when so required by the Court or the Rules (1985 Rules on
Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever
the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs.
Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges
may be restrained by the Court from leaving the country or, if abroad, compelled to return
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released
on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the
Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable
impairment of the right to travel only on grounds of interest of national security, public safety or
public health, as compared to the provisions on freedom of movement in the 1935 and 1973
Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel were treated under one
provision. Article III, Section 1(4) thereof reads:
1wphi1

The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired.

The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court
or when necessary in the interest of national security, public safety, or public health (Article
IV, Section 5).

The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only
on the grounds of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only
on the basis of "national security, public safety, or public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol.
I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to
the ban on international travel imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel upon application of an interested
party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA
121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxillary writs, process and other means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect
that the condition imposed upon an accused admitted to bail to make himself available at all times
whenever the Court requires his presence operates as a valid restriction on the right to travel no
longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond
has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides,
the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v.
Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by
failing to appear before the Court when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused were to be allowed to leave or to
remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so that he may be dealt with in accordance with
law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best
interest that criminal prosecutions should run their course and proceed to finality without undue
delay, with an accused holding himself amenable at all times to Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo
C. Silverio.

SO ORDERED.
G.R. No. 79269 June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court,
Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood,
Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:

The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the
City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and
prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of
respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander
Bilog" in Criminal Case No. 86-48926 for Rebellion, and the subsequent Order dated July 30, 1987
1

granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00
to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987
which asked the court to allow petitioner to present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.

The pivotal issues presented before Us are whether the right to bail may, under certain
circumstances, be denied to a person who is charged with an otherwise bailable offense, and
whether such right may be waived.

The following are the antecedents of this petition:

In the original Information filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional
2

Trial Court of Manila, later amended in an Amended Information which was filed on 24 October
3

1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were
charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal
Code allegedly committed as follows:

That in or about 1968 and for some time before said year and continuously thereafter until
the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party
of the Philippines, its military arm, the New People's Army, its mass infiltration network, the
National Democratic Front with its other subordinate organizations and fronts, have, under
the direction and control of said organizations' leaders, among whom are the aforenamed
accused, and with the aid, participation or support of members and followers whose
whereabouts and identities are still unknown, risen publicly and taken arms throughout the
country against the Government of the Republic of the Philippines for the purpose of
overthrowing the present Government, the seat of which is in the City of Manila, or of
removing from the allegiance to that government and its laws, the country's territory or part of
it;
 That from 1970 to the present, the above-named accused in their capacities as leaders of
the aforenamed organizations, in conspiracy with, and in support of the cause of, the
organizations aforementioned, engaged themselves in war against the forces of the
government, destroying property or committing serious violence, and other acts in the pursuit
of their unlawful purpose, such as . . .

(then follows the enumeration of specific acts committed before and after February 1986).

At the time the Information was filed the private respondent and his co-accused were in military
custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave.,
Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was
offered for his
capture.4

A day after the filing of the original information, or on 3 October 1986, a petition for habeas
corpus for private respondent and his co-accused was filed with this Court which, as shall hereafter
5

be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the
agreement of the parties under which herein private respondent "will remain in legal custody and will
face trial before the court having custody over his person" and the warrants for the arrest of his co-
accused are deemed recalled and they shall be immediately released but shall submit themselves to
the court having jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a Motion to Quash the
Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no
jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the
defendants; and (d) the criminal action or liability has been extinguished, to which petitioner filed an
6

Opposition citing, among other grounds, the fact that in the Joint Manifestation and Motion dated
7

October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that:

xxx xxx xxx

Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the
court having custody over his person.

In his Order of March 6, 1987, respondent Judge denied the motion to quash.
8

Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a
petition for bail, which herein petitioner opposed in an Opposition filed on 27 May 1987 on the
9 10

ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942
and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty
of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is
no longer entitled to bail as evidence of his guilt is strong.

On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos.
1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it
existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a
fine not to exceed P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83,
No. 24) which was officially released for circulation on June 26, 1987.
In his Order of 7 July 1987 respondent Judge, taking into consideration Executive Order No. 187,
11

granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon
private respondent the additional condition that he shall report to the court once every two (2)
months within the first ten (10) days of every period thereof. In granting the petition respondent
Judge stated:

. . . There is no more debate that with the effectivity of Executive Order No. 187, the offense
of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the
penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable
pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of
Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses
before final judgment. This is very evident upon a reading of Section 3, Rule 114,
aforementioned, in relation to Section 21, same rule. In view, therefore, of the present
circumstances in this case, said accused-applicant is now entitled to bail as a matter of right
inasmuch as the crime of rebellion ceased to be a capital offense.

As to the contention of herein petitioner that it would be dangerous to grant bail to private
respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is
to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release
would allow his return to his organization to direct its armed struggle to topple the government before
whose courts he invokes his constitutional right to bail, respondent Judge replied:

True, there now appears a clash between the accused's constitutional right to bail in a non-
capital offense, which right is guaranteed in the Bill of Rights and, to quote again the
prosecution, "the existence of the government that bestows the right, the paramount interest
of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a
"declaration of the rights of the individual, civil, political and social and economic, guaranteed
by the Constitution against impairment or intrusion by any form of governmental action.
Emphasis is placed on the dignity of man and the worth of individual. There is recognition of
certain inherent and inalienable rights of the individual, which the government is prohibited
from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To
this Court, in case of such conflict as now pictured by the prosecution, the same should be
resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his
rights under the Bill of Rights as against the State. Anyway, the government is that powerful
and strong, having the resources, manpower and the wherewithals to fight those "who
oppose, threathen (sic) and destroy a just and orderly society and its existing civil and
political institutions." The prosecution's fear may or may not be founded that the accused
may later on jump bail and rejoin his comrades in the field to sow further disorders and
anarchy against the duly constituted authorities. But, then, such a fear can not be a reason
to deny him bail. For the law is very explicit that when it comes to bailable offenses an
accused is entitled as a matter of light to bail. Dura est lex sed lex.

In a motion to reconsider the above order filed on 16 July 1987, petitioner asked the court to
12

increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice
Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an
amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable
for the offense and explaining that it is recommending P100,000.00 because the private respondent
"had in the past escaped from the custody of the military authorities and the offense for which he is
charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the
perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-
organized plan to overthrow the government through armed struggle and replace it with an alien
system based on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental motion for reconsideration indirectly asking the
13

court to deny bail to the private respondent and to allow it to present evidence in support thereof
considering the "inevitable probability that the accused will not comply with this main condition of his
bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts
which are widely known by the People of the Philippines and which this Honorable Court may have
judicial notice of:

1. The accused has evaded the authorities for thirteen years and was an escapee from
detention when arrested;

2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and
presented a Driver's License to substantiate his false identity;

4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;

5. He and his companions were on board a private vehicle with a declared owner whose
identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was
offered and paid for his arrest,

which "clearly indicate that the accused does not entertain the slightest intention to appear in court
for trial, if released." Petitioner further argues that the accused, who is the Chairman of the
Communist Party of the Philippines and head of its military arm, the NPA, together with his followers,
are now engaged in an open warfare and rebellion against this government and threatens the
existence of this very Court from which he now seeks provisional release," and that while he is
entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original
penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State
conflicts with that of an individual, that of the former prevails for "the right of the State of self-
preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the
Constitution." Petitioner further invokes precedents in the United States of America holding "that
there is no absolute constitutional barrier to detention of potentially dangerous resident aliens
pending deportation proceedings, and that an arrestee may be incarcerated until trial as he
14

presents a risk of flight; and sustaining a detention prior to trial of arrestee charged with serious
15

felonies who are found after an adversary hearing to pose threat to the safety of individuals and to
the community which no condition of release can dispel. 16

On 30 July 1987 respondent Judge handed down the Order adverted to in the introductory portion
17

of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court finds the
"supplemental" motion for reconsideration to be without merit and hereby denies it but finds
the first motion for reconsideration to be meritorious only insofar as the amount of bail is
concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of
bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the
additional condition that accused Rodolfo Salas shall report to the court once every two (2)
months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-
31665, August 6, 1975, 66 SCRA 58).
In denying the supplemental motion for reconsideration the respondent Judge took into account the
"sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the private respondent to bail but merely asked to
increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the
petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the
cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a
proviso on the right of an accused to bail in bailable offenses, but only an injunction against
excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of
Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108,
October 11, 1951, 90 Phil, 172.

Unable to agree with said Order, petitioner commenced this petition submitting therein the following
issues:

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE

ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL
DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S
SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE
OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE
GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE

ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED
BAIL TO THE RESPONDENT RODOLFO SALAS.

in support of which petitioner argues that private respondent is estopped from invoking his right to
bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and
face trial before the court having custody of his person" in consideration of the recall of the warrant
of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-
capital offenses, is not absolute when there is prima facie evidence that the accused is a serious
threat to the very existence of the State, in which case the prosecution must be allowed to present
evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion
when he did not allow petitioner to present all the evidence it may desire to support its prayer for the
denial of bail and when he declared that the State has forfeited its right to do so since during all the
time that the petition for bail was pending, it never manifested, much less hinted, its intention to
adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing
the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy
record of private respondents' criminal background, the gravity of the pending charge, and the
likelihood of flight.
18

In Our resolution of 11 August 1987 We required the respondents to comment on the petition and
19

issued a Temporary Restraining Order ordering respondent Judge to cease and desist from
implementing his order of 30 July 1987 granting bail to private respondent in the amount of
P50,000.00.

In his Comment filed on 27 August 1987, private respondent asks for the outright dismissal of the
20

petition and immediate lifting of the temporary restraining order on the following grounds:

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE

ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER
 WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON
APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE

PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION

PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE
CONSTITUTION.

IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT

EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS
NON-EXISTENT AND/OR HAD BEEN WAIVED.

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES

NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER
CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. The reply was filed on 18
21

September 1987. 22

In Our resolution of 15 October 1987 We gave due course to the petition and required the parties to
23

file simultaneously their memoranda within twenty days from notice.

In their respective manifestations and motions dated 5 November and 23 November

24

1987 petitioner and private respondents asked to be excused from filing their Memoranda and that
25

the petition and reply be considered as the Memorandum for petitioner and the Comment as the
Memorandum for private respondent, which We granted in Our resolution of 19 November
1987 and 1 December 1987, respectively.
26 27

In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on
the issues raised in this petitions, which he complied with by filing his Manifestation on 30 May
28

1990 wherein he manifests that he supports the petition and submits that the Order of respondent
29

Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private
respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail
to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the
primary consideration is to insure the attendance of the accused at the trial of the case against him
which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever
amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on
Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor
General likewise maintains that the right of the petitioner to hearing on the application of private
respondent for bail cannot be denied by respondent Judge.
And now on the issues presented in this case.

I.

Unquestionably, at the time the original and the amended Informations for rebellion and the
application for bail were filed before the court below the penalty imposable for the offense for which
the private respondent was charged was reclusion perpetua to death. During the pendency of the
application for bail Executive Order No. 187 was issued by the President, by virtue of which the
penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored.
The restored law was the governing law at the time the respondent court resolved the petition for
bail.

We agree with the respondent court that bail cannot be denied to the private respondent for he is
charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore,
30

a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus:

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 prescribed 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.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

Bail, a matter of right: exception. All persons in custody shall, before final conviction, be
entitled to bail as a matter of right, except those charged with a capital offense or an offense
which, under the law at the time of its commission and at the time of the application for bail,
is punishable by reclusion perpetua, when evidence of guilt is strong.

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when
the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the
31

right is absolute.
32

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact
that the accused was already convicted, although erroneously, by the trial court for the complex
crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment,
We granted bail in the amount of P30,000.00 during the pendency of his appeal from such
conviction. To the vigorous stand of the People that We must deny bail to the accused because the
security of the State so requires, and because the judgment of conviction appealed from indicates
that the evidence of guilt of Hernandez is strong, We held:

. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican
state, like ours, to be derived upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major preoccupation of our political
system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of
section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4),
(5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the
protection of several aspects of freedom.
The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the
Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the
suspension of the right to bail, if the government's campaign to suppress the rebellion is to
be enhanced and rendered effective. If the right to bail may be demanded during the
continuance of the rebellion, and those arrested, captured and detained in the course thereof
will be released, they would, without the least doubt, rejoin their comrades in the field
thereby jeopardizing the success of government efforts to bring to an end the invasion,
rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a
matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is
limited to determining whether or not evidence of guilt is strong. But once it is determined that the
33

evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of
Prisons, supra., We held:

The provision on bail in our Constitution is patterned after similar provisions contained in the
Constitution of the United States and that of many states of the Union. And it is said that:

The Constitution of the United States and the constitution of the many states provide
that all persons shall be bailable by sufficient sureties, except for capital offenses,
where the proof is evident or the presumption of guilt is great, and, under such
provisions, bail is a matter of right which no court or judge can properly refuse, in all
cases not embraced in the exceptions. Under such provisions bail is a matter of right
even in cases of capital offenses, unless the proof of guilt is evident or the
presumption thereof is great! 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail
in the instances where bail is a matter of right. However, in the cases where the grant of bail
is discretionary, due process requires that 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. 35

We agree, however, with petitioner that it was error for the respondent court to fix the bond at
P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are
not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et
al., 170 SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and
reasonable opportunity for the prosecution to refute it. Among them are the nature
and circumstances of the crime, character and reputation of the accused, the weight
of the evidence against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or not the accused
is under bond in other case. . . .

In the instant case petitioner has sufficiently made out allegations which necessitate a grant
of an opportunity to be heard for the purpose of determining the amount of bail, but not for
the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to
deny bail.
 II.

It must, however, be stressed that under the present state of the law, rebellion is no longer
punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968
approved on 24 October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article 135 of the Revised Penal
Code by increasing the penalty for rebellion such that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who
promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty
of reclusion perpetua.

Any person merely participating or executing the commands of others in a rebellion

or insurrection shall suffer the penalty of reclusion perpetua.

xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed
prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term
is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same. 36

III.

We agree with Petitioner that private respondent has, however, waived his right to bail in
G.R. No. 76009.

On 3 October 1986, or the day following the filing of the original information in Criminal Case
No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent,
and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia
Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel
Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying,
among others, that the petition be given due course and a writ of habeas corpus be issued
requiring respondents to produce the bodies of herein private respondent and his co-
accused before the Court and explain by what authority they arrested and detained them.
The following proceedings took place thereafter in said case:

1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required

respondents to make a return of the writ on or before the close of office hours on 13 October
and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning.

2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a
Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina
Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were
apprehended by the military on September 29, 1986 in the evening at the Philippine General
Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party
of the Philippines, New People's Army and National Democratic Front, organizations
dedicated to the overthrow of the Government through violent means, and having actually
committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After
their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial
Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for
their arrest were issued and respondents continue to detain them because of the warrants of
arrest and the pendency of the criminal cases against them. Respondents further allege that,
contrary to the allegation in the petition, herein private respondent was not a member of the
NDF panel involved in peace negotiations with the Government; neither is he and his
companions Cruz and Concepcion covered by any, safe conduct pass issued by competent
authorities.

3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements
reached between them. We issued a resolution reading as follows:

When this case was called for hearing this morning, Attorneys Romeo Capulong,
Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon
Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for
the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General
Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the
respondents, with Solicitor General Ordoez arguing for the respondents.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in

conformity with the agreement reached with the government, the petition for habeas
corpus will be withdrawn with detainee Rodolfo Salas to remain under custody,
whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released
immediately.

Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing
statement made by petitioners' counsel regarding the withdrawal of the petition
for habeas corpus, declaring that no objection will be interposed to the immediate
release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will
be required of them, but they will continue to face trial with their co-accused, Rodolfo
Salas; further, that they will not be rearrested on the basis of the warrants issued by
the trial court provided that they manifest in open Court their willingness to subject
themselves to the jurisdiction of the Court and to appear in court when their presence
is required.

In addition, he stated that he is willing to confer with petitioners' counsel today

relative to the compromise agreement that they have previously undertaken to
submit.

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath
as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have
agreed to subject themselves to the jurisdiction of the trial court, the Court ordered
their immediate release.

Thereafter, the Court approved the foregoing manifestations and statements and
required both parties to SUBMIT to the Court their compromise agreement by 4:00
o'clock this afternoon. Teehankee, C.J., is on official leave.

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint
Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and
Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and
Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows:
 COME NOW petitioners and the respondents, assisted by their respective counsel,
and to this Honorable Tribunal respectfully manifest:

1. That in the discussion between Romeo Capulong, petitioners' counsel, and

Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were
conducted to find out how the majesty of the law may be preserved and human
considerations may be called into play.

2. That in the conference both counsel agreed to the following terms of agreement:

a. The petition for habeas corpus will be withdrawn by petitioners and

Josefina Cruz and Jose Milo Concepcion will be immediately released but
shall appear at the trial of the criminal case for rebellion (People v. Rodolfo
Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial
Court, National Capital Judicial Region) filed against them under their
personal recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before
the court having custody over his person.

c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled in view of formal manifestation before
the Supreme Court that they will submit themselves to the court having
jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the conformity of the
Government to the foregoing terms which were likewise accepted by petitioner (sic)
and their counsel of record.

4. That the two counsel submitted their oral manifestation during the hearing on
October 14 and the present manifestation in compliance with the resolution
announced in court this morning.

WHEREFORE, it is prayed that the petition for habeas corpus be dismissed.

5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas,
Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen.
Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col.
Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14,
1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and
Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A.
Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney
Josue S. Villanueva as counsel for respondents which states that they have entered
into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by
petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately
released but shall appear at the trial of the criminal case for rebellion [People vs.
Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital
Judicial Region, Branch XII, Manila], filed against them, on their personal
recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial
 before the court having custody over his person; and [c] the warrant of arrest for the
person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in
view of the formal manifestation before this Court that they will submit themselves to
the court having jurisdiction over their person and in view of the said agreement, the
petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition
for habeas corpus but subject to the condition that petitioners' lead counsel, Atty.
Capulong, upon his oath as member of the Bar, shall abide by his commitment to
ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the
criminal case for rebellion filed against them. Teehankee, C.J., is on official leave.

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even
during the pendency of the trial of his criminal case, [he] has expressly waived his right to
bail." Upon the other hand, private respondent asserts that this claim is totally devoid of factual and
37

legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest
and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was
not resolved by this Court or by the compromise agreement of the parties but left open for further
determination in another proceeding. Moreover, the matter of the right to bail was neither raised by
either party nor resolved by this Court, and the legal steps promptly taken by private respondent
after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the
petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional
rights to be granted not only provisional but final and permanent liberty. Finally, private respondent
maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means
that private respondent agreed to continue to be in the custody of the law or in custodia legis and
nothing else; it is not to be interpreted as waiver.

Interestingly, private respondent admits that:

"Custody" has been held to mean nothing less than actual imprisonment. It is also defined as
the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing
or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59
Pa. 320 and Rolland v. Com. 82 Pa. 306)

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled
jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for
admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38

When the parties in G.R. No. 76009 stipulated that:

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having
custody over his person.

they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of
the court, or in actual confinement or detention, as distinguished from the stipulation concerning his
co-petitioners, who were to be released in view of the recall of the warrants of arrest against them;
they agreed, however, "to submit themselves to the court having jurisdiction over their persons."
Note should be made of the deliberate care of the parties in making a fine distinction between legal
custody and court having custody over the person in respect to Rodolfo Salas and court having
jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to
emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had
the parties intended otherwise, or had this been unclear to private respondent and his counsel, they
should have insisted on the use of a clearer language. It must be remembered that at the time the
parties orally manifested before this Court on 14 October 1986 the terms and conditions of their
agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had
already been issued by the trial court against private respondent and his co-accused. The stipulation
that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and
that only they shall be released, further confirmed the agreement that herein petitioner shall remain
in custody of the law, or detention or confinement.

In defining bail as:

. . . the security given for the release of a person in custody of the law, . . .

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the
term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an
accused from imprisonment until his conviction and yet secure his appearance at the trial. It 39

presupposes that the person applying for it should be in the custody of the law or otherwise deprived
of liberty.
40

Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had
unequivocably waived his right to bail.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right recognized by law.

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing
legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to
exist, with the intent that such right shall be surrendered and such person forever deprived of its
benefit; or such conduct as warrants an inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it."41

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character, and, since the
word "waiver" covers every conceivable right, it is the general rule that a person may waive
any matter which affects his property, and any alienable right or privilege of which he is the
owner or which belongs to him or to which he is legally entitled, whether secured by contract,
conferred with statute, or guaranteed by constitution, provided such rights and privileges rest
in the individual, are intended for his sole benefit, do not infringe on the rights of others, and
further provided the waiver of the right or privilege is not forbidden by law, and does not
contravene public policy; and the principle is recognized that everyone has a right to waive,
and agree to waive, the advantage of a law or rule made solely for the benefit and protection
of the individual in his private capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statute or guaranteed by
constitution may be waived, a waiver in derogation of a statutory right is not favored, and a
waiver will be inoperative and void if it infringes on the rights of others, or would be against
public policy or morals and the public interest may be waived.
 While it has been stated generally that all personal rights conferred by statute
and guaranteed by constitution may be waived, it has also been said that constitutional
provisions intended to protect property may be waived, and even some of the constitutional
rights created to secure personal liberty are subjects of waiver.
42

In Commonwealth vs. Petrillo, it was held:

43

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in
which the state, as well as the accused, is interested; and (b) those which are personal to the
accused, which are in the nature of personal privileges. Those of the first class cannot be
waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will." 44

This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be
45 46

heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of
Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and
1wphi1

independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly
suggests that the other rights may be waived in some other form or manner provided such waiver
will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a
right which is personal to the accused and whose waiver would not be contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private
respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case
No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,
Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion,
are hereby NULLIFIED and SET ASIDE.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERGON MANES
and RAMIL MANES, accused-appellants.

DECISION

PARDO, J.:

The case before the Court is an appeal taken by accused Sergon Manes and Ramil Manes
from the judgment[1] of the Regional Trial Court, Branch 25, [2] IloiloCity, convicting them of
murder and sentencing them to each "suffer the penalty of reclusion perpetua with the accessory
penalties as provided in Article 41 of the Revised Penal Code" and "to indemnify the family of
their victim in the amount of P50,000.00 plus P21,250.00 as expenses for the burial, wake and
other related matter and to pay the costs."

We affirm the conviction.

On July 12, 1991, the Provincial Prosecutor of Iloilo Province filed with the Regional Trial
Court, Iloilo City, an information charging the accused with murder, as follows:

xxx

"That on or about the 23rd of June, 1991, in the Municipality of Badiangan, Province
of Iloilo, Philippines, and within the jurisdiction of this Honorable court, the above-
named accused, conspiring, confederating and mutually helping one another to better
realize their purpose armed with a knife and a .38 caliber revolver respectively, with
treachery and/or evident premeditation, did then and there wilfully, unlawfully, and
feloniously assault, attack, stab and shot Nicanor Tamorite with the knife and .38
caliber revolver with which they were then provided, inflicting upon the said Nicanor
Tamorite stab wounds and gun shot wounds on the different parts of his body which
caused his death immediately thereafter.[3]

The prosecution recommended no bail for the provisional liberty of the accused.

On July 22, 1991, the trial court issued a warrant of arrest against the accused. On October
18, 1991, the trial court ordered the case archived for failure to locate the two accused.

On June 24, 1992, or about a year after, accused Sergon and Ramil Manes were arrested in
Romblon, Romblon. On July 6, 1992, they were brought to Iloilo City.
 Upon arraignment on September 17, 1992, both accused pleaded not guilty to the
information, and, thereafter, the court proceeded to try the case.

Meantime, on August 25, 1992, the accused filed a petition for bail, which was opposed by
the prosecution. The trial court, however, did not hear the petition for bail. Neither did the
accused invoke the right to bail at any stage of the trial.

The prosecution presented six witnesses,[4] two of whom were eyewitnesses to the crime,
while the defense presented three,[5] two of whom were the accused themselves.

On January 13, 1995, the trial court rendered judgment convicting the accused of murder,
the dispositive portion of which reads as follows:

xxx

"Accordingly, finding the accused, Ramil Manes and Sergon Manes, guilty of murder
beyond reasonable doubt, they are therefore sentenced to each suffer the penalty of
Reclusion Perpetua with the accessory penalties provided in Article 41 of the Revised
Penal Code and they are also ordered to indemnify the family of the victim the
amount of P50,000.00 plus P21,250.00 as expenses for the burial, wake and other
related matter and to pay the costs.[6]

On February 10, 1995, both accused appealed to this Court.[7]

In the appeal, accused questioned the trial courts failure (a) to hear the petition for bail; (b)
to consider defense of relative in favor of Ramil Manes; and (c) to take note that Sergon Manes
was a mere victim of Tamorites unlawful aggression.

The antecedent facts are as follows:

(a) According to the prosecution

On June 23, 1991, at about 5:00 in the afternoon, Alan Catequista together with Nicanor
Tamorite and Jose Cubita, went to see a basketball game at the barangay plaza. When the game
was over, Allan approached and invited Nicanor Tamorite to go home; at the time, he was still
seated. Accused Ramil Manes approached Nicanor Tamorite and pointed a .38 caliber revolver at
him, saying "It is a bad luck you did not kill me during the fiesta in Barangay Cabayugan. Now I
will be the one to kill you." Nicanor Tamorite ran to Allan Catequista and used him as a shield
from Ramil.[8] At that point, Alan Catequista heard a thud and as he looked back, he saw accused
Sergon Manes with a gory knife and he also saw Nicanor Tamorite running away, with blood on
his back. Ramil Manes pursued Nicanor Tamorite and shot him hitting him at the back, just
above the waistline. Both accused continued to chase Nicanor Tamorite who ran towards the
premises of the house of Ading Ablado. Ramil Manes fired two more shots. It could not be
determined whether those shots hit Nicanor Tamorite as he and the accused were already inside
the premises of the fence of Ading Ablado. [9] Jose Cubita who was near Nicanor Tamorite when
the two accused chased him did not render assistance to him. [10] After Alan Catequista heard the
two shots, he and Jose Cubita ran home. Alan Catequista told his father and uncle that Sergon
Manes stabbed Nicanor Tamorite and that Ramil Manes shot him. Alan Catequista, his father,
uncle, Jose Cubita and the mother of Nicanor Tamorite then went to where the body of Nicanor
was in the downhill portion of the premises of the house of Ading Ablado. Nicanor was lying on
his back with two (2) wounds on the breast, one (1) gunshot wound and one (1) stab wound.[11]

(b) According to the accused

According to accused Ramil Manes, in the afternoon of June 23, 1991, he was at home
cooking. At around 5:00 to 5:30, he heard shouts coming from the direction of the barangay
basketball court, which was about ten (10) meters away from his house. He went to the window
to check what it was. He saw his younger brother Sergon Manes lying on the concrete pavement
and several persons were ganging up on him, three of whom he identified as Nicanor Tamorite,
Alan Catequista and Jose Cubita. They kept on boxing and kicking his brother prompting him to
come to the latters aid. On his way out, he saw a gun on top of the table and brought it with him
to the basketball court.

While on his way to the basketball court, Ramil fired a warning shot to prevent Nicanor
Tamorite from stabbing his brother, Sergon. Nicanor persisted in his pursuit of Sergon, with a
knife in his hand. Sergon was about three meters ahead of Nicanor who was about ten meters
ahead of the pursuing Ramil. Ramil fired another shot which hit Nicanor who fell to the
ground. Meanwhile, Sergon managed to flee. Ramil also fled to the direction of the sugarcane
field as soon as he fired the second shot because he saw the group of Alan Catequista
approaching, armed with guns.[12] Ramil and his brother Sergon went into hiding and only
surfaced a year later when they were arrested in Romblon.

We find the facts as those established by the prosecutions evidence.

The appeal has no merit. The trial court did not err in finding the appellants guilty of murder.

Appellants contend that the trial court committed a serious error of law when it went on with
the trial of the case without hearing the petition for bail that was set for hearing several times.

Under the law,[13] in offenses punishable by reclusion perpetua, life imprisonment or death,
the accused has no right to bail when evidence of guilt is strong. The court must hear a petition
for bail to determine whether the evidence of guilt is strong before deciding to grant or deny bail
to the accused.[14]

While the accused can apply for bail and have the court hear his application summarily and
promptly, such right may be waived expressly or impliedly.[15]

In this case, the trial court proceeded to try the case without resolving the petition for bail
that appellants filed. However, the latter did not call the attention of the trial court to their
unresolved application for bail. It was only in the appeal that they raise this issue. Thus, for
failure to bring to the attention of the trial court at the earliest opportune time, appellants are
deemed to have waived their right to bail.

What is more, the issue has been rendered academic by the conviction of the accused. When
an accused is charged with a capital offense, or an offense punishable by reclusion perpetua, or
life imprisonment or death, and evidence of guilt is strong, bail must be denied, as it is neither a
matter of right nor of discretion.[16]

To exculpate himself, appellant Ramil claims defense of relative. This must likewise fail.
Article 11 of the Revised Penal Code provides the requisites of defense of relative.

The most essential of these elements is unlawful aggression. Ramil Manes contends that he
came to the defense of his younger brother, Sergon, who was being attacked by Nicanor
Tamorite, Alan Catequista and Jose Cubita, together with several others. He claimed that these
persons boxed and kicked his brother in different parts of the body.

If, indeed, more than three persons attacked Sergon Manes, he would have suffered injuries
or even a scratch on his body. But there was none. In fact, prosecution witness Alan Catequista
testified that in no instance did he, Nicanor Tamorite and Jose Cubita attack Sergon Manes.

The truth of the matter is that it was Ramil Manes who approached the victim, pointed a .38
caliber revolver at him and said "It is bad luck that you did not kill me during the fiesta in
Barangay Cabayugan. Now, I will be the one to kill you." While Nicanor Tamorite tried to hide
from Ramil, Sergon suddenly appeared from behind and stabbed Nicanor Tamorite at the back
using a fan knife. Unlawful aggression clearly came from accused-appellants, not from the
victim Nicanor Tamorite.

Jose Cubita, another companion of the victim who witnessed what transpired that fateful
afternoon of June 23, 1991, corroborated the testimony of Alan Catequista that the accused-
appellants were the aggressors.Despite the fact that Nicanor Tamorite was unarmed and
outnumbered, the brothers Ramil and Sergon Manes persisted in executing their plan to the point
of chasing the fleeing victim.
 Ramil Manes testified that while chasing Nicanor Tamorite who was about ten meters away
from him, he fired only two shots; one in the air as warning shot and another in the direction of
Nicanor. The second shot hit the victim who fell to the ground. Ramil fled the scene right after
the second shot. The autopsy report revealed, however, that Nicanor Tamorite sustained not only
one but three gunshot wounds. There were also stab wounds, one at the right side of the chest
and another at the upper left back of the victim.[17]

Assuming for the sake of argument that Nicanor Tamorite was carrying a knife while
pursuing Sergon, who was allegedly unarmed, it is highly questionable how the victim sustained
those stab wounds considering their location. The accused Ramil himself testified that no one
approached Nicanor Tamorite as soon as he fell to the ground so as to account for the presence of
the stab wounds. Neither did the accused adduce evidence to explain how the victim could have
sustained those stab wounds.

The behavior of accused Ramil Manes subsequent to the killing further negates his claim of
defense of relative. If indeed he acted in defense of his younger brother Sergon who was then
under attack, he would not harbor any fear in presenting himself to the proper
authorities. Instead, he made no such report. Persons who act in legitimate defense of their
persons or rights invariably surrender themselves to the authorities and describe fully and in all
candor all that has happened with a view to justify their acts. They lose no time in going to the
punong barangay, the municipal mayor or the police and lay before them all the facts.[18]

As regards Sergon Manes, he claims that he should not have been convicted of murder
because he was an innocent victim of the unlawful aggression of the deceased. He denies that he
stabbed the latter. This denial must fail in light of the positive identification and testimony of
prosecution witnesses, Alan Catequista and Jose Cubita, that the unlawful aggression came from
accused appellants. Moreover, the autopsy report conducted by Dr. Leticia Austria-Tobias on
June 24, 1991 supports the prosecutions theory that accused shot and stabbed the victim.

We need not tackle the remaining assignments of error which obviously must fail in light of
the foregoing discussion.

However, as pointed out by the solicitor general, the prosecution failed to prove the
aggravating circumstance of evident premeditation. Evident premeditation exists when the
following requisites are present:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and

3. A sufficient lapse of time between the determination and execution, to allow him to reflect
upon the consequences of his act.[19]
 Evident premeditation, like other circumstances that would qualify the killing to murder,
must be established by clear and positive evidence. Mere presumptions and inferences are
insufficient no matter how logical and probable they may be.[20] The prosecution failed to
satisfactorily establish the existence of the requisites of evident premeditation. No direct
evidence was presented regarding the time the accused planned to kill the victim. It was not
established that the appellants persistently and continuously clung to this resolution despite the
lapse of sufficient time for them to clear their minds and overcome their determination to commit
the same.

The trial court correctly considered treachery as qualifying the killing of the victim to
murder.

Treachery exists when the offender commits any of the crimes against person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from any defense which the offended party might
make.[21] Where the victim was totally unprepared for the unexpected attack from behind and had
no weapon to resist it, the stabbing could not but be considered as treacherous. [22] In the instant
case, Nicanor Tamorite was seated when Ramil Manes approached him with a .38 caliber
revolver in his hand. Sergon Manes took advantage of this preoccupation of the victim with
Ramil Manes by surreptitiously attacking and stabbing him at the back, while he was not in a
position to defend himself against his aggressors.

The manner by which Nicanor Tamorite was assaulted reveals a concerted action towards
the accomplishment of a single criminal intent. Conspiracy may be inferred from the acts of the
appellants before, during and after the crime which are indicative of a joint purpose, concerted
action and concurrence of sentiments.[23]

On the other hand, the trial court must not have appreciated the aggravating circumstances
of abuse of superior strength and aid of armed men because these are absorbed in treachery.[24]

Consequently, we sustain the trial courts conviction of the accused, including the civil
liability imposed against them. However, the aggravating circumstances of evident premeditation
and abuse of superior strength and aid of armed men are not to be appreciated.

WHEREFORE, we AFFIRM the judgment of the trial court convicting accused-appellants

Sergon Manes and Ramil Manes of murder and sentencing each of them to suffer the penalty
of reclusion perpetua with the accessory penalties of the law and to indemnify the heirs of the
deceased Nicanor Tamorite in the amount of P50,000.00, plus P21,250.00, as actual damages.

Costs against accused-appellants.

SO ORDERED.
GEORGE VINCOY, petitioner, vs. HON. COURT OF APPEALS and
[1]

PEOPLE OF THE PHILIPPINES, respondents.

DECISION

PUNO, J.:

This is a petition for review of the Decision dated December 20, 2002 of
the Court of Appeals in CA-G.R. CR No. 24316 affirming that of the Regional
[2]

Trial Court of Pasig, Branch 268, in Criminal Case No. 112432 finding
petitioner George Vincoy guilty beyond reasonable doubt of estafa under Art.
315, par. 2(a) of the Revised Penal Code.

The Information reads:

On or about March 14, 1996, in Pasig City, and within the jurisdiction of this
Honorable Court, the accused, by means of deceit and false pretenses executed to or
simultaneously with the commission of the fraud, did, then and there willfully,
unlawfully and feloniously defraud Lizah C. Cimafranca and Rolando Flores, in the
following manner, to wit: the said accused represented that he could mobilize thirty
(30) dump trucks and two (2) payloaders for use of the complainant[s] subject to the
payment of P600,000.00 mobilization fund and, believing this representation to be
true, the said complainants paid and delivered the said amount to the accused at Banco
de Oro Bank, Pasig City Branch, which representation accused knew well to be false
and fraudulent and were (sic) only made to induce the complainants to give and
deliver as in fact they gave and delivered the said amount of P600,000.00 to the
respondent (sic), and accused once in possession of said amount, misappropriated,
misapplied and converted the same to his own personal use and benefit, to the damage
and prejudice of the complainants, Lizah C. Cimafranca and Rolando Flores, in the
amount of P600,000.00.

Pasig City, May 28, 1997. [3]

Petitioner pleaded not guilty to the charge. Hence, trial ensued.

The prosecution evidence established that private complainants Rolando

Flores and Lizah Cimafranca are business partners and contractors. They
approached petitioner George Vincoy, proprietor of Delco Industries Phils.,
Inc., in March 1996 for dump trucks and payloaders which they needed to
haul silica in Bulacan. Petitioner represented that he could mobilize thirty (30)
dump trucks and two (2) payloaders upon payment of a P600,000.00
mobilization fund by complainants at P20,000.00 per dump truck. Pursuant to
their verbal agreement, private complainants paid an initial P200,000.00 cash
to the petitioner on March 9 or 10, 1996 for which they were issued a receipt
by the petitioner. To pay the balance of P400,000.00, complainant Rolando
Flores, with the help of his wife Carolina, borrowed from a client of Banco de
Oro, Pasig City Branch, of which his wife was the
Manager. Carolina personally guaranteed the loan. For the purpose, Rolando
bought a managers check from Banco de Oro which issued to him Managers
Check No. 011543 for P400,000.00. On March 14, 1996, Rolando, Lizah, and
petitioner went to the bank to encash the check. After Rolando encashed the
check, Carolina Flores personally handed over the proceeds to petitioner.
Petitioner issued Official Receipt No. 085 but wrote therein the amount
of P600,000.00, not P400,000.00, to include the P200,000.00 which he
previously received from the complainants. The previous receipt for
the P200,000.00 was thus cancelled. Despite the payment, only one (1) dump
truck was delivered in the evening of March 14, 1996. Private complainants
demanded the return of their money but they were either ignored or refused
entry at petitioners office premises. After some time, petitioner offered to
complainants PCIBank Check No. 022170A as reimbursement. The check
was for P715,000.00 issued by one Luzviminda Hernandez payable to cash
and/or to Delco Industries. It was understood that the difference would be
turned over to petitioner. Eager to have their money back and pay their
obligation to their creditor, private complainants accepted the check and
returned Official Receipt No. 085 which petitioner requested. The check,
however, was dishonored upon presentment for payment. Private
complainants again demanded the return of their money but petitioner could
no longer be contacted. As a result, Carolina Flores was terminated from her
job as Manager of Banco de Oro, Pasig City Branch, for guaranteeing her
husbands loan.

In May 1996, Lizah Cimafranca filed a complaint for estafa against

petitioner with the Office of the City Prosecutor of Pasay City docketed as I.S.
No. 96-1946. It was, however, dismissed in a Resolution dated August 21,
1996 on the ground that petitioners obligation was purely civil in nature and for
complainants failure to attend the hearings. On October 8, 1996, Lizah
[4]

Cimafranca, joined by Rolando Flores, re-filed the complaint charging the

same offense against petitioner with the Office of the City Prosecutor of Pasig
City which filed the corresponding information in court, root of the present
petition.

Petitioner denied that he received P600,000.00 from the private

complainants. He alleged that he was only given a Banco de Oro Managers
Check for P400,000.00 which was not even issued in his name. Failing to
notice that the check was not in his name, he issued Official Receipt No.
085 for P600,000.00, not P400,000.00, to include the overprice for
[5]

complainants commission in the amount of P200,000.00. When he noticed

that the check was issued in the name of complainant Rolando Flores, he
arranged for his driver to return the check to complainants for encashment
and to take back O.R. No. 085. As a result, his transaction with the private
complainants was cancelled because they did not turn over the proceeds of
the check to him.

The trial court sustained the version of the prosecution. The trial judge
found incredible petitioners averment that he failed to notice that the check in
question was not issued in his name. Petitioner was a seasoned
businessman. A judgment of conviction was rendered on February 23, 2000,
the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds the accused GEORGE

VINGCOY guilty beyond reasonable doubt of the crime of ESTAFA defined and
penalized under Art. 315 of the Revised Penal Code and hereby sentences him to
suffer the penalty of imprisonment from fourteen (14) years, eight (8) months and one
(1) day to twenty (20) years of Reclusion Temporal in its medium and maximum
period (sic) and to indemnify the offended party in the amount of P600,000.00. With
costs.

SO ORDERED. [6]
 Accused appealed to the Court of Appeals to no avail. Hence, this petition
[7]

for review.

Petitioner insists that his guilt has not been proven beyond reasonable
doubt. He contends that the trial court and the Court of Appeals erred in
concluding that he received payment from the private complainants
considering that Official Receipt No. 085 was admittedly returned to him and
marked cancelled while PCIBank Check No. 022170A for P715,000.00 was
not presented and marked as an exhibit and was only surreptitiously included
as Exh. B during the prosecutions formal offer of evidence. He also argues
that his identity was not even established since his pictures, although[8]

presented and marked as Exhs. B, B-1 and B-2, were not included in the
prosecutions formal offer of evidence. Further, he points out that the dismissal
of the previous complaint for estafafiled by Lizah Cimafranca by the City
Prosecutors Office of Pasay City supports his acquittal.

Petitioners contentions are not well-taken. The fact that his pictures were
not formally offered as evidence although they were presented and marked as
exhibits, is not fatal to the prosecutions cause. There is no question as to
petitioners identity as the accused. He himself admitted that he transacted
with the private complainants although the transaction was cancelled for
failure of complainants to pay the mobilization fund. This admission that he
personally dealt with the complainants in regard to the transaction in question
renders his identification a non-issue.

The dismissal of a similar complaint for estafa filed by Lizah Cimafranca

before the City Prosecutors Office of Pasay City will not exculpate the
petitioner. The case cannot bar petitioners prosecution. It is settled that the
dismissal of a case during its preliminary investigation does not constitute
double jeopardy since a preliminary investigation is not part of the trial and is
[9]

not the occasion for the full and exhaustive display of the parties evidence but
only such as may engender a well-grounded belief that an offense has been
committed and accused is probably guilty thereof. For this reason, it cannot
[10]

be considered equivalent to a judicial pronouncement of acquittal. Hence,

petitioner was properly charged before the Office of the City Prosecutor of
Pasig City which is not bound by the determination made by the Pasay City
Prosecutor who may have had before him a different or incomplete set of
evidence than that subsequently presented before the Pasig City Prosecutor.

Lastly, whether or not petitioner indeed received payment from private

complainants is a question of fact best left to the determination of the trial
court. We quote with approval the following observations of the trial court, viz:

xxxxxxxxx

That payment was indeed received by accused can not (sic) be denied as he himself
issued a receipt to evidence such receipt of payment. The receipt, a xerox copy of
which, was marked as evidence by accused (Exhibit 4) indicated that the payment, as
explained by the witness Ms. Carolina Flores (TSN, May 7, 1998, pp. 18-20) was
actually received in cash as the amount written in the receipt is P600,000.00 and
not P400,000.00. That the number of the Managers (sic) check which was
for P400,000.00 was written on the receipt by way of reference only. This Court gives
full credence to the testimony of Ms. Flores who was eventually terminated from the
bank where she worked by reason of her guaranteeing Mr. Flores loan from a
customer of the bank. It is clear that cash was actually paid out and the contention of
the accused that he was only given a managers (sic) check which, according to him,
he eventually returned can not (sic) be sustained. For why would he issue a receipt in
his own handwriting if he did not receive the cash. The receipt is a unilateral
admission of a party that he got paid. The receipt, as admitted by accused Mr. Vincoy
was issued by him (TSN, May 7, 1999, pp. 7-8) when he received the cashiers (sic)
check. That he had the cashiers (sic) check returned for encashment as it was not
made payable to his company. Being a businessman, he would have immediately
noticed the fact that the managers (sic) check was made out in the name of Rolando
Flores and immediately returned the check without issuing a receipt or he could have
issued a provisional receipt if indeed what was used as payment was a check. It is
highly inconceivable that he would receive the check, issue a receipt then realize that
the check is not made payable to his company. Furthermore, two different copies of
the same receipts were presented. Prosecution presented a copy of Official Receipt
085 without the marking cancelled while accused presented a copy of the same
Official Receipt with cancelled written on its face.

As testified to by complainant, he returned the original of the Official Receipt upon

receipt of a check endorsed by accused. Thus it is not improbable that the word
cancelled was written on said official receipt by the accused only upon its return to
him. The testimonies of prosecution witnesses as to the cronology (sic) of events are
more credible and is thus given more weight by this Court because mere denial of the
accused can not prevail over the positive testimonies of the prosecutions
witnesses. Moreover, private complainant clearly explained that accused came into
possession of the original official receipt when accused Vingcoy endorsed and turned
over to him a check made payable to cash and or Delco Industries by one Luzviminda
Hernandez for P715,000.00. However, when said check was presented for payment it
was dishonored for the reasonACCOUNT CLOSED.

xxxxxxxxx

This factual finding of the trial court, affirmed by the Court of Appeals, that
petitioner indeed received payment from the private complainants in the form
of the mobilization fund, deserves great weight and respect.

Moreover, the fact that PCIBank Check No. 022170A for P715,000.00 was
not presented and marked as an exhibit during the trial, hence, could not have
been formally offered as evidence, is not fatal to the prosecutions cause. As
[11]

well pointed out by the Office of the Solicitor General (OSG), petitioner was
prosecuted not for issuing a worthless check, but for deceiving complainants
into parting with their P600,000.00 on the promise that he would provide them
dump trucks and payloaders.

IN VIEW WHEREOF, the petition is DENIED. The questioned Decision

dated December 20, 2002 of the Court of Appeals in CA-G.R. CR No. 24316
affirming that of the Regional Trial Court of Pasig, Branch 268, in Criminal
Case No. 112432, is AFFIRMED.

SO ORDERED.
G.R. No. L-38443 November 25, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
ELISEA YLAGAN, defendant-appellee.

Attorney-General Jaranilla for appellant.

Eliseo M. Zagala and Conrado V. Sanchez for appellee.

ABAD SANTOS, J.:

Against the appellee, Elisea Ylagan, a complaint for physical injuries in the justice of the peace court
of Batangas, Province of Batangas. After preliminary investigation, the case forwarded to the Court
of First Instance, where the provincial fiscal filed an information charging her with serious physical
injuries. Upon arraignment, the defendant pleaded not guilty to the information; whereupon the
private prosecutor, with the concurrence of the deputy provincial fiscal, moved for the dismissal of
the case, which motion was granted by the court. The attorney for the defendant said nothing about
the dismissal of the case.

Eleven days later, the acting provincial fiscal filed another information in the same justice of the
peace court, charging the same defendant with the same offense of serious physical injuries. After
another preliminary investigation, the case was again forwarded to the Court of First Instance, where
the information filed in the justice of the peace court was reproduced. Upon arraignment, the
defendant entered a plea of double jeopardy, based on section 28 of the Code of Criminal
Procedure. After hearing, the court sustained the plea and dismissed the case. From this order of
dismissal, an appeal was taken by the Government.

Section 28 of the Code of Criminal Procedure read as follows:

A person cannot be tried for an offense, nor for any attempt to commit the same or frustration
thereof, for which he has been previously brought to trial in a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form and substance
to sustain a conviction, after issue properly joined, when the case is dismissed or otherwise
terminated before judgment without the consent of the accused.

It seems clear that under the foregoing provisions of law, defendant in a criminal prosecution is in
legal jeopardy when placed on trial under the following conditions: (1) In a court of competent
jurisdiction; (2) upon a valid complaint or information; (3) after he has been arraigned; and (4) after
he has pleaded to the complaint of information. Tested by this standard, we are of the opinion that
the appellee has been once in jeopardy for the offense for which she is now prosecuted. It is true
that in United States vs. Ballentine (4 Phil., 672; 1 Philippine Decisions 575, and in other subsequent
cases, including People vs. Belisario (G.R. No. 33416), 1 this court had held that there is no jeopardy
until the investigation of the charges has actually been commenced by the calling of a witness; but
we are now convinced that such a view should be abandoned. There is no provision or principle of
law jeopardy. All that the law requires is that the accused has been brought to trial "in a court of
competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction, after issue properly joined." Under our system of criminal
procedure, issue is properly joined after the accused has entered a plea of not guilty. The mere
calling of a witness would not add a particle to the danger, annoyance, and vexation suffered by the
accused, after going through the process of being arrested, subjected to a preliminary investigation,
arraigned, and required to plead and stand trial.

The rule against double jeopardy protects the accused not against the peril of second punishment,
but against being again tried for the same offense. This is the principle underlying both section 23
and section 28 of the Code of Criminal Procedure. Commenting on said section 23, this court,
in Julia vs. Sotto (2 Phil., 247, 252, 253), said: "Without the safeguard this article establishes in favor
of the accused, his fortune, safely, and peace of mind would be entirely at the mercy of the
complaining witness, who might repeat his accusation as often as dismissed by the court and
whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure.
The accused would never be free from the cruel and constant menace of a never-ending charge,
which the malice of the complaining witness might hold indefinitely suspended over his head, were it
not that the judiciary is exclusively empowered to authorize, by an express order to that effect, the
repetition of a complaint or information once dismissed in the cases in which the law requires that
this be done. Such is, in our opinion, the fundamental reason of the article of the law to which we
refer. Thanks to this article, the accused, after being notified of the order rest dismissing the
complaint may, as the case may be, either rest assured that he will not be further molested, or
prepare himself for the presentation of a new complaint. In either case, the order gives him full
information as to what he may hope or fear, and prevents his reasonable hopes from being
dissipated as the result of an equivocal and indefinite legal situation. To this much, at least, one who
has been molested, possibly unjustly, by prosecution on a criminal charge, is entitled."

Counsel for the government, however, contends that the previous case brought against the appellee
was dismissed with her consent, on the theory that the phrase "without the consent of the accused",
used in section 28 of the Code of Criminal Procedure, should be construed to mean "over the
objection of the accused" or "against the will of the accused". We can not accept such a theory. We
believe it a sound rule to lay down, that the mere silence of the defendant or his failure to object to
the dismissal of the case does not constitute a consent within the meaning of section 28 of the Code
of Criminal Procedure. The right not to be put in jeopardy a second time for the offense is as
important as the other constitutional right of the accused in a criminal case. Its waiver can not, and
should not, be predicated on mere silence. lawphil.net

The order appealed from is affirmed, with costs de oficio. So ordered.

Avancea, C.J., Street, Vickers, and Butte, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ERNESTO
ULEP, accused-appellant.

DECISION

BELLOSILLO, J.:

In the aftermath of an incident where a certain Buenaventura Wapili went berserk

[1]

at Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22

December 1995, Police Officer Ernesto Ulep was found guilty of murder and sentenced
to death by the trial court for killing Wapili. Ulep was also ordered to indemnify the heirs
of the victim in the amount of P50,000.00 and to pay the costs. [2]

The evidence shows that at around two o' clock in the morning of 22 December
1995 Buenaventura Wapili was having a high fever and was heard talking insensibly to
himself in his room. His brother-in-law, Dario Leydan, convinced him to come out of his
room and talk to him, but Wapili told Leydan that he could not really understand
himself. After a while, Wapili went back to his room and turned off the lights. Moments
later, the lights went on again and Leydan heard a disturbance inside the room, as if
Wapili was smashing the furniture. Unable to pacify Wapili, Leydan called Pastor Bonid
[3]

of the Alliance Church of Kidapawan to help him "pray over" Wapili, but they could not
enter the latter's room as he became wild and violent. Suddenly, Wapili bolted out of his
room naked and chased Leydan. Thereafter, Leydan with the aid of two (2) of his
neighbors attempted to tie Wapili with a rope but was unsuccessful as Wapili was much
bigger in built and stronger than anyone of them. Wapili, who appeared to have
[4]

completely gone crazy, kept on running without any particular direction.

Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and
asked for assistance. As Wapili passed by the house of Plando, he banged Plando's
vehicle parked outside.Using a hand-held radio, Plando then contacted SPO1 Ernesto
Ulep, SPO1 Edilberto Espadera and SPO2 Crispin Pillo, all members of the PNP
assigned to secure the premises of the nearby Roman Catholic Church of Kidapawan. [5]

At around four o'clock in the morning of the same day, SPO1 Ulep together with
SPO1 Espadera and SPO2 Pillo arrived at the scene on board an Anfra police service
jeep. The three (3) police officers, all armed with M-16 rifles, alighted from the jeep
when they saw the naked Wapili approaching them. The kind of weapon Wapili was
armed with is disputed. The police claimed that he was armed with a bolo and a rattan
stool, while Wapili's relatives and neighbors said he had no bolo, but only a rattan stool.
 SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons
or they would shoot him. But Wapili retorted "pusila!" ("fire!") and continued advancing
towards the police officers. When Wapili was only about two (2) to three (3) meters
away from them, SPO1 Ulep shot the victim with his M-16 rifle, hitting him in various
parts of his body. As the victim slumped to the ground, SPO1 Ulep came closer and
pumped another bullet into his head and literally blew his brains out.
[6]

The post mortem examination of the body conducted by Dr. Roberto A. Omandac,
Municipal Health Officer of Kidapawan, showed that Wapili sustained five (5) gunshot
wounds: one (1) on the right portion of the head, one (1) on the right cheek, one (1) on
the abdomen and two (2) on the right thigh: SHEENT - gunshot wound on the right
parietal area with fractures of the right temporoparietal bones with evisceration of brain
tissues, right zygomatic bone and right mandible, lateral aspect; CHEST AND BACK -
with powder burns on the right posterior chest; ABDOMEN - gunshot wound on the right
upper quadrant measuring 0.5 cm. in diameter (point of entry) with multiple powder
burns around the wound and on the right lumbar area (point of exit). Gunshot wound on
the suprapubic area (point of entry); EXTREMETIES - with gunshot wounds on the right
thigh, upper third, anterior aspect measuring 0.5 cm. in diameter with powder burns
(point of entry) and right buttocks measuring 0.5 cm. in diameter (point of exit); gunshot
wound on the right thigh, upper third, posterolateral aspect; CAUSE OF DEATH -
multiple gunshot wounds. [7]

Dr. Omandac concluded that the shots were fired at close range, perhaps within
twenty-four (24) inches, judging from the powder burns found around some of the
wounds in the body of the victim, and that the wound in the head, which caused the
[8]

victim's instantaneous death, was inflicted while "the victim was in a lying position."
[9]

The Office of the Ombudsman for the Military filed an Information for murder against
SPO1 Ulep. The accused pleaded not guilty to the charge on arraignment, and insisted
during the trial that he acted in self-defense. However, on 28 October 1997, the trial
court rendered judgment convicting the accused of murder and sentencing him to death
-

The means employed by the accused to prevent or repel the alleged aggression is not
reasonable because the victim, Buenaventura Wapili, was already on the ground,
therefore, there was no necessity for the accused to pump another shot on the back
portion of the victim's head. Clearly the gravity of the wounds sustained by the victim
belies the pretension of the accused that he acted in self-defense. It indicates his
determined effort to kill the victim. It is established that accused (sic) was already in
the ground that would no longer imperil the accused's life. The most logical option
open to the accused was to inflict on the victim such injury that would prevent the
victim from further harming him. The court is not persuaded by the accused's version
because if it is true that the victim attacked him and his life was endangered - yet his
two (2) companions SPO1 Espadera and SPO2 Pillo did not do anything to help him
but just witness the incident - which is unbelievable and unnatural behavior of police
officers x x x x

WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding

the accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the
accused is hereby sentenced to suffer the extreme penalty of Death, to indemnify the
heirs of Buenaventura Wapili the amount of P50,000.00 without subsidiary
imprisonment in case of insolvency and to pay the costs.

Death penalty having been imposed by the trial court, the case is now before us on
automatic review. Accused-appellant prays for his acquittal mainly on the basis of his
claim that the killing of the victim was in the course of the performance of his official
duty as a police officer, and in self-defense.

Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the

burden of proving legal justification therefor. He must establish clearly and convincingly
how he acted in fulfillment of his official duty and/or in complete self-defense, as
claimed by him; otherwise, he must suffer all the consequences of his malefaction. He
has to rely on the quantitative and qualitative strength of his own evidence, not on the
weakness of the prosecution; for even if it were weak it could not be disbelieved after he
had admitted the killing.[10]

Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The
Revised Penal Code may be successfully invoked, the accused must prove the
presence of two (2) requisites, namely, that he acted in the performance of a duty or in
the lawful exercise of a right or an office, and that the injury caused or the offense
committed be the necessary consequence of the due performance of duty or the lawful
exercise of such right or office. The second requisite is lacking in the instant case.

Accused-appellant and the other police officers involved originally set out to perform
a legal duty: to render police assistance, and restore peace and order at Mundog
Subdivision where the victim was then running amuck. There were two (2) stages of the
incident at Mundog Subdivision. During the first stage, the victim threatened the safety
of the police officers by menacingly advancing towards them, notwithstanding accused-
appellant's previous warning shot and verbal admonition to the victim to lay down his
weapon or he would be shot. As a police officer, it is to be expected that accused-
appellant would stand his ground. Up to that point, his decision to respond with a
barrage of gunfire to halt the victim's further advance was justified under the
circumstances. After all, a police officer is not required to afford the victim the
opportunity to fight back. Neither is he expected - when hard pressed and in the heat of
such an encounter at close quarters - to pause for a long moment and reflect coolly at
his peril, or to wait after each blow to determine the effects thereof.

However, while accused-appellant is to be commended for promptly responding to

the call of duty when he stopped the victim from his potentially violent conduct and
aggressive behavior, he cannot be exonerated from overdoing his duty during the
second stage of the incident - when he fatally shot the victim in the head, perhaps in his
desire to take no chances, even after the latter slumped to the ground due to multiple
gunshot wounds sustained while charging at the police officers. Sound discretion and
restraint dictated that accused-appellant, a veteran policeman, should have ceased
[11]

firing at the victim the moment he saw the latter fall to the ground. The victim at that
point no longer posed a threat and was already incapable of mounting an aggression
against the police officers. Shooting him in the head was obviously unnecessary. As
succinctly observed by the trial court -

Once he saw the victim he fired a warning shot then shot the victim hitting him on the
different parts of the body causing him to fall to the ground and in that position the
accused shot the victim again hitting the back portion of the victim's head causing the
brain to scatter on the ground x x x x the victim, Buenaventura Wapili, was already on
the ground. Therefore, there was no necessity for the accused to pump another shot on
the back portion of the victim's head.

It cannot therefore be said that the fatal wound in the head of the victim was a
necessary consequence of accused-appellant's due performance of a duty or the lawful
exercise of a right or office.

Likewise, the evidence at hand does not favor his claim of self-defense. The
elements in order for self-defense to be appreciated are: (a) unlawful aggression on the
part of the person injured or killed by the accused; (b) reasonable necessity of the
means employed to prevent or repel it; and, (c) lack of sufficient provocation on the part
of the person defending himself.[12]

The presence of unlawful aggression is a condition sine qua non. There can be no
self-defense, complete or incomplete, unless the victim has committed an unlawful
aggression against the person defending himself. In the present case, the records
[13]

show that the victim was lying in a prone position on the ground - bleeding from the
bullet wounds he sustained, and possibly unconscious - when accused-appellant shot
him in the head. The aggression that was initially begun by the victim already ceased
when accused-appellant attacked him. From that moment, there was no longer any
danger to his life.

This Court disagrees with the conclusion of the court a quo that the killing of Wapili
by accused-appellant was attended by treachery, thus qualifying the offense to
murder. We discern nothing from the evidence that the assault was so sudden and
unexpected and that accused-appellant deliberately adopted a mode of attack intended
to insure the killing of Wapili, without the victim having the opportunity to defend himself.

On the contrary, the victim could not have been taken by surprise as he was given
more than sufficient warning by accused-appellant before he was shot, i.e., accused-
appellant fired a warning shot in the air, and specifically ordered him to lower his
weapons or he would be shot. The killing of Wapili was not sought on
purpose. Accused-appellant went to the scene in pursuance of his official duty as a
police officer after having been summoned for assistance. The situation that the victim,
at the time accused-appellant shot him in the head, was prostrate on the ground is of no
moment when considering the presence of treachery. The decision to kill was made in
an instant and the victim's helpless position was merely incidental to his having been
previously shot by accused-appellant in the performance of his official duty.

There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which
the offended party might make. Considering the rule that treachery cannot be inferred
[14]

but must be proved as fully and convincingly as the crime itself, any doubt as to its
existence must be resolved in favor of accused-appellant. Accordingly, for failure of the
prosecution to prove treachery to qualify the killing to murder, accused-appellant may
only be convicted of homicide.

Indeed, to hold him criminally liable for murder and sentence him to death under the
circumstances would certainly have the effect of demoralizing other police officers who
may be called upon to discharge official functions under similar or identical
conditions. We would then have a dispirited police force who may be half-hearted, if not
totally unwilling, to perform their assigned duties for fear that they would suffer the same
fate as that of accused-appellant.

This brings us to the imposition of the proper penalty.

 We find in favor of accused-appellant the incomplete justifying circumstance of
fulfillment of a duty or lawful exercise of a right. Under Art. 69 of The Revised Penal
Code, "a penalty lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the several
cases mentioned in Arts. 11 and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption present or
lacking."

Incomplete justification is a special or privileged mitigating circumstance, which, not

only cannot be offset by aggravating circumstances but also reduces the penalty by one
or two degrees than that prescribed by law. Undoubtedly, the instant case would have
[15]

fallen under Art. 11, par. 5 of The Revised Penal Code had the two (2) conditions
therefor concurred which, to reiterate: first, that the accused acted in the performance of
a duty or the lawful exercise of a right or office; and second, that the injury or offense
committed be the necessary consequence of the due performance of such duty or the
lawful exercise of such right or office. But here, only the first condition was
fulfilled. Hence, Art. 69 is applicable, although its "that the majority of such conditions be
present," is immaterial since there are only two (2) conditions that may be taken into
account under Art. 11, par. 5. Article 69 is obviously in favor of the accused as it
provides for a penalty lower than that prescribed by law when the crime committed is
not wholly justifiable. The intention of the legislature, obviously, is to mitigate the penalty
by reason of the diminution of either freedom of action, intelligence, or intent, or of the
lesser perversity of the offender.[16]

We likewise credit in favor of accused-appellant the mitigating circumstance of

voluntary surrender. The police blotter of Kidapawan Municipal Police Station shows
that immediately after killing Wapili, accused-appellant reported to the police
headquarters and voluntarily surrendered himself. [17]

Article 249 of The Revised Penal Code prescribes for the crime of homicide the
penalty of reclusion temporal, the range of which is twelve (12) years and one (1) day to
twenty (20) years. There being an incomplete justifying circumstance of fulfillment of a
duty, the penalty should be one (1) degree lower, i.e., from reclusion temporal to prision
mayor, pursuant to Art. 69, in relation to Art. 61, par. 2, and Art. 71, of the Code, to be
imposed in its minimum period since accused-appellant voluntarily surrendered to the
authorities and there was no aggravating circumstance to offset this mitigating
circumstance. Applying the Indeterminate Sentence Law, the maximum of the penalty
shall be taken from the minimum period of prision mayor, the range of which is six (6)
years and one (1) day to eight (8) years, while the minimum shall be taken from the
penalty next lower in degree which is prision correccional, in any of its periods, the
range of which is six (6) months and one (1) day to six (6) years.

The right to kill an offender is not absolute, and may be used only as a last resort,
and under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge the
necessity to kill. It may be true that police officers sometimes find themselves in a
[18]

dilemma when pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither capriciously
nor oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a sound
discretion, and within the spirit and purpose of the law. We cannot countenance
[19]

trigger-happy law enforcement officers who indiscriminately employ force and violence
upon the persons they are apprehending. They must always bear in mind that although
they are dealing with criminal elements against whom society must be protected, these
criminals are also human beings with human rights.

WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1

ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced to
an indeterminate prison term of four (4) years, two (2) months and ten (10) days
of prision correccional medium as minimum, to six (6) years, four (4) months and twenty
(20) days of prision mayor minimum as maximum. He is further ordered to indemnify the
heirs of Buenaventura Wapili in the amount of P50,000.00, and to pay the costs.

SO ORDERED.
G.R. No. 102131 August 31, 1992

FRANCO GORION, petitioner,

vs.
REGIONAL TRIAL COURT OF CEBU, Branch 17, presided by HON. JOSE BURGOS, PEOPLE
OF THE PHILIPPINES, represented by CITY PROSECUTOR RODULFO PEREZ and BONIFACIO
BACALTOS, respondents.

Eutiquiano V. Bilocura for petitioner.

DAVIDE, JR., J.:

May an order dismissing a criminal case after the accused had been arraigned, issued in open court
through inadvertence or mistake during a hearing that had already been cancelled, be set aside by
the court and the case tried without placing the accused in double jeopardy?

This is the issue in this case.

On 17 October 1989, after conducting the appropriate preliminary investigation pursuant to a

complaint filed by one Bonifacio Bacaltos, the Office of the City Prosecutor of Cebu City filed with the
Regional Trial Court of Cebu an information charging the petitioner with the crime of Estafa involving
the amount of P50,000.00. The case was docketed as Criminal Case No. CBU-16726 1 and was
raffled to Branch 17 of said court.

Upon his arraignment on 12 March 1990, the petitioner entered a plea of not guilty and the court set
the pre-trial and trial of the case for 17 April 1990. 2

The pleadings of the parties do not reveal what transpired on 17 April 1990. It appears, however, that
hearing was again scheduled for 27 and 28 September 1990.

When the case was called for hearing on 27 September 1990, neither the petitioner nor the accused
was present. Not wanting to take advantage of their absence, and considering that there were other
cases to be heard, the prosecutor moved for the cancellation of the hearing on that date as well as
the hearing to be held the following day, which the court granted. The hearing was reset to 4 October
1990. The pertinent portions of the transcript of stenographic notes of the proceedings on 27
September 1990 read:

ATTY. GAMELO FAJARDO:

I appear as private prosecutor in this case, Your Honor.

FISCAL RODOLFO PEREZ:

For the Prosecution, Your Honor.

COURT:

Where is (sic) the accused and the defense counsel?

ATTY. FAJARDO:

I have not seen them in the courtroom, Your Honor.

FISCAL PEREZ:

The private complainant is coming, Your Honor, but we do not want to

take advantage of the absence of the accused and his defense
counsel. We are willing to give them opportunity (sic) to present their
evidence.

ATTY. FAJARDO:

Inasmuch as there are other cases to be heard by the Court this

morning, we might as well reset the hearing.

FISCAL PEREZ:

I suggest that we cancel the hearing scheduled for today and also for
tomorrow, September 28, 1990.

COURT:

What is your available calendar date?

(NOTE)

(The Fiscal, private prosecutor and the Court, after going over their
available calendar dates, finally agreed to call this case again on
October 4, 1990 at 11:00 A.M.)

COURT:

Upon suggestion of the prosecution, cancel the hearing scheduled for

today and tomorrow, September 28, 1990, and reset the same to
October 4, 1990, at 11:00 A.M. in order to give the prosecution the
last opportunity to present its evidence. Fiscal Rodolfo Perez, and
private prosecutor Atty. Gamelo Fajardo are notified in open court.
Furnish Atty. Eutiquiano Bilocura, defense counsel, with a copy of this
order. Notify the accused and the private complainant. 3
Unfortunately, however, the case was still included in the trial calendar of the court for 28 September
1990. When the case was called for hearing on that date, only the Fiscal appeared for the
prosecution. The court then issued the following order dismissing the case:

ORDER

When this case was called for hearing today for the presentation of evidence for the
prosecution, only the Fiscal appeared without his witnesses.

In view thereof, this case is hereby ordered DISMISSED for failure to prosecute with
costs de oficio.

Furnish the private complainant, the private prosecutor, defense counsel and the
accused each with a copy of this Order.

SO ORDERED. 4

Counsel for the petitioner, Atty. Eutiquiano Bilocura, received a copy of this order on 4 October 1990.
However, he received a copy of the 27 September 1990 Order only on 15 June 1992. 5

The pleadings of the parties do not reveal what actually transpired on 4 October 1990. In any event,
the case was called again on 31 May 1991, but the Court reset the hearing to 18, 22, 23 and 25 July
1991 on the ground that it had not yet received from the Chief Justice of this Court a reply to the
Presiding Judge's request for an extension of the trial dates. 6

On 2 July 1991, petitioner filed a Motion to Dismiss 7 alleging therein that the dismissal of the case by
the court on 28 September 1990 without his consent amounted to his acquittal; hence, he would be
placed in double jeopardy, prohibited under Section 21, Article III of the New Constitution in relation to
Section 3(h), Rule 117 of the 1985 Rules of Criminal Procedure, if the case were to be "reopened or
continued."

The trial court set aside the dismissal order of 28 September 1990 in its Order of 9 August 1991 on
the ground that the court was only misled in issuing the same due to the stenographer's failure to
transcribe the order given in open court issued the previous day; hence, it was issued without due
process.

Also on 9 August 1991, the court denied the petitioner's motion to dismiss on the ground that the
order of dismissal of 28 September 1990 was set aside in the aforesaid order of 9 August 1991. 8

On 16 September 1991, petitioner filed a motion to reconsider the order denying his motion to
dismiss; he alleges therein that he cannot be blamed or faulted for (a) any error in the dismissal of
the case, (b) the failure of the stenographer to type the order, and (c) the inclusion of the case in the
calendar of 28 September 1990. And even assuming arguendo that the court erroneously dismissed
the information, he asserts that in accordance with this Court's ruling in People
vs. Hernandez, 9 People vs. Ferrer, 10 People vs. Borja 11 and People vs. Gil, 12 the reopening,
continuation thereof or appeal therefrom by the State will place him in double jeopardy.
In its Order of 18 September 1991, the court denied the aforesaid motion for reconsideration by
reiterating the reasons upon which it anchored its denial order of 9 August 1991, and holding that the
cases abovecited are not applicable since they involve dismissals grounded on lack of jurisdiction. 13

Hence this petition, filed on 2 October 1991, wherein petitioner reiterates the issues raised and the
arguments adduced before the trial court and asks this Court to set aside the Orders of 9 August
1991 denying the motion to dismiss, and 18 September 1991 denying the motion for reconsideration
for having been rendered without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction. 14

On 10 March 1992, after extensions of time were granted them, public respondents, through the
Office of the Solicitor General, filed their Comment to the petition in compliance with the Resolution
of 6 November 1991. 15They assert therein that the order of dismissal of 28 September 1990 was a
mistake and was thus issued without due process as there was in fact no hearing on that date; hence, the
dismissal was null and void and of no effect. Besides, petitioner did not object to the dismissal; thus, he
cannot invoke double jeopardy.

Petitioner filed, on 24 February 1992, 16 a Reply to the Comment. In refutation of the public respondents'
assertion that he did not object to the dismissal, petitioner maintains that his silence or failure to object is
not the express consent contemplated by Section 7, Rule 117 of the Rules of Court that would bar him
from pleading double jeopardy.

We resolved to give due course to the petition, consider the Comment as the Answer and decide this
case on the merits.

The petition must fail.

It is obvious to this Court that the trial court was, on 28 September 1990, divested of jurisdiction, pro
hac vice, to issue any order, much leas one of dismissal, in Criminal Case No. CBU-16727 for the
simple reason that said case was already effectively removed from its trial calendar for that date in
view of the previous day's order cancelling the hearing of the case on 27 and 28 September 1990.
Plainly, the court should not have included the case for hearing in the 28 September 1990 trial
calendar. The respondent Court attributed the mistake to the stenographer's failure to immediately
transcribe the order. This, of course, is passing the buck too far.

The Judge, Clerk of Court and the prosecution should shoulder the blame because unless amnesia
suddenly struck all of them simultaneously, it cannot be imagined that in a brief span of about
twenty-four (24) hours, they had all forgotten about the order dictated in open court cancelling the
hearing for 27 and 28 September 1990. For the prosecutor who orally moved for such cancellation
and the Judge himself who dictated the said order, no plausible explanation may be offered for such
lapse. Apparently, the latter did not read the calendar before the start of the session that day, and the
branch clerk of court who probably prepared the same one or two days earlier, did not bother to
review it anymore. And in the event that said clerk of court failed to attend the session, he or she did
not read the minutes of the case as prepared by a subordinate. Upon the other hand, the prosecutor
literally slept on his duty when he failed to immediately inform the court of the previous day's order of
cancellation of hearing which obviously accounted for the absence of both the witness and the
private prosecutor, and kept his unusual silence in the face of the open court dictation of the order of
dismissal. This ineptitude cannot be condoned. Prosecutors should always be mindful of the heavy
burden of responsibility which they bear in prosecuting criminal cases because they represent no
less than the People of the Philippines and the State.

The erroneous dismissal order of 28 September 1990 was then issued capriciously and arbitrarily; it
unquestionably deprived the State of a fair opportunity to present and prove its case. Thus, its right
to due process was violated. The said order is null and void and hence, cannot be pleaded by the
petitioner to bar the subsequent annulment of the dismissal order or a re-opening of the case on the
ground of double jeopardy. This is the rule obtaining in this jurisdiction.

In People vs. Balisacan, 17 the accused at his arraignment pleaded not guilty and was allowed to present
mitigating circumstances; he thus testified that he stabbed the deceased in self-defense. The trial court
thereafter, without receiving the evidence for the prosecution, promulgated a decision acquitting the
accused; the prosecution appealed therefrom. We then rejected the plea of double jeopardy therein not
only because of the of fatal procedural flaw of failure to re-arraign the accused after he, in effect, vacated
his plea of guilty thus resulting in the absence of a plea which is an essential element of double jeopardy,
but also because:

. . . the court a quo decided the case upon the merits without giving the prosecution
an opportunity to present its evidence or even to rebut the testimony of the
defendant. In doing so, it clearly acted without due process of law. And for lack of this
fundamental prerequisite, its action is perforce null and void. The acquittal, therefore,
being a nullity for want of due process, is no acquittal at all, and thus can not
constitute a proper basis for a claim of former jeopardy. (People vs. Cabero, 61 Phil.
121; 21 Am. Jur. 2d. 235; McCleary vs. Hudspeth, 124 Fed. 2d. 445).

In People vs. Gomez, 18 where the motion of the Assistant City Fiscal to postpone the hearing of a
criminal case because the Special Prosecutor actively handling the cage was not served with a notice
of the said hearing and the former was not ready because the records were with the latter was denied
by the respondent judge in open court, resulting in the eventual dismissal of the case, this Court ruled that
such dismissal was capricious and rendered with grave abuse of discretion amounting to an excess of
jurisdiction, thus depriving the state of a fair opportunity to prosecute and convict. Such a dismissal order,
made sua sponte, for no proper reason at all, is void for being issued without authority.

In Serino vs. Zosa, 19 where both the Assistant Provincial Fiscal and private prosecutor were readily
available, having merely stepped out of the courtroom when the Judge announced that he would first
finish the trial of another case, but after said trial was completed and the criminal case was called again,
both were not yet around, thus prompting the court to issue an order dismissing the case for failure to
prosecute, which it nevertheless set aside on a motion for reconsideration, this Court rejected the plea of
double jeopardy on the ground that the order of dismissal was null and void for lack of due process, and
hence was correctly set aside by the Judge himself.

In People vs. Navarro, 20 this Court nullified a judgment of acquittal in a criminal case for light threats
which was erroneously decided together with a case for frustrated theft against the same accused in a
joint decision, despite the fact that there was no joint trial in said cases and no hearing had as yet been
conducted in the light threats case, because in rendering the judgment in the latter, the Judge acted with
abuse of discretion amounting to excess or lack of jurisdiction. It is therefore null and void ab initio.
Having been rendered by a court which had no power to do so, it is as though there had been no
judgment; it is coram non judice.

In People vs. Pablo, 21 this Court struck down as having been issued with grave abuse of discretion
amounting to lack of jurisdiction an order of the court acquitting the accused, later on amended to be
merely one of dismissal of the case, issued when the prosecution asked for a postponement upon its
inability to produce its last but vital and indispensable witness who would have testified on the cause of
death of the victim, the subpoena for whom was received by his secretary, despite the fact that five (5)
witnesses for the prosecution had already testified. Said order could not be used to invoke double
jeopardy.

In People vs. Bocar, 22 where after the accused entered their plea of not guilty, the Judge, instead of
receiving the evidence for the prosecution, conducted a summary investigation by directing questions to
both the complainant and the accused and at the end thereof, issued an order dismissing the case on the
ground that it is more civil than criminal, this Court ruled that since no evidence in law had as yet been
entered into the records of the case, the dismissal order was arbitrary, whimsical and capricious a
veritable abuse of discretion which this Court cannot permit.

In Saldana vs. Court of Appeals, 23 where the trial judge had earlier issued an order sustaining the
objection of the defense to the presentation of one Linel Garcia Cuevas on the ground that being a mere
member of the complaining Valle Verde Bagong Lipunan Community Association, Inc., he cannot be
considered as the complainant, and thereafter not only denied a motion to reconsider the said order but
also barred the prosecution from presenting other members of the association from testifying and
thereupon terminated the presentation of the prosecution, and, acting on a motion to dismiss the case for
insufficiency of evidence, dismissed the case on said ground, this Court sustained the decision of the
Court of Appeals annulling the said order and reinstating the criminal case in a petition
for certiorari brought before the latter.

Coming back to the instant case, the dismissal order of 28 September 1990 being null and void
because the trial court lost its jurisdiction to issue the same and violated the right of the prosecution
to due process, it follows that Criminal Case No. CBU-16726 continues to remain at that stage
before the said order was issued. Consequently, the first jeopardy was not terminated and no
second jeopardy threatened the accused.

The three (3) requisites of double jeopardy are: (1) a first jeopardy must have attached prior to the
second, (2) the first jeopardy must have been validly terminated, and (3) a second jeopardy must be
for the same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b)
before a competent court, (c) after arraignment, (d) when a valid plea has been entered, and (e)
when the case was dismissed or otherwise terminated without the express consent of the accused. 24

It having been shown that in this case, the requisites of a valid termination of the first jeopardy are
not present, the petitioner cannot hide behind the protective mantle of double jeopardy.

WHEREFORE, the petition is DISMISSED for lack of merit. The respondent Court is hereby directed
to immediately place in its trial calendar Criminal Case No. CBU-16726 for the reception of the
evidence of the parties and thereafter to decide the name.
Costs against petitioner.

SO ORDERED.
A.M. No. RTJ-92-876 September 19, 1994

STATE PROSECUTORS, complainants,

vs.
JUDGE MANUEL T. MURO, Regional Trial Court, Branch 54, Manila, respondent.

PER CURIAM:

In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities
place a premium on how he has complied with his continuing duty to know the law. A quality thus
considered essential to the judicial character is that of "a man of learning who spends tirelessly the
weary hours after midnight acquainting himself with the great body of traditions and the learning of
the law; is profoundly learned in all the learning of the law; and knows how to use that learning." 1

Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession,
to know the very law he is supposed to apply to a given controversy. He is called upon to exhibit
more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have
great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in
their grasp of the legal principles. For, service in the judiciary means a continuous study and
research on the law from beginning to end. 2

In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro of the Regional Trial
Court (RTC) of Manila, Branch 54, was charged by State Prosecutors Nilo C. Mariano, George C. Dee
and Paterno V. Tac-an with ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and
3.02 of the Code of Judicial Conduct, committed as follows:

1. That on August 13, 1992, respondent judge issued an Order dismissing eleven
(11) cases (docketed as Crim. Cases Nos. 92-101959 to 92- 101969, inclusive) filed
by the undersigned complainant prosecutors (members of the DOJ Panel of
Prosecutors) against the accused Mrs. Imelda Romualdez Marcos, for Violation of
Central Bank Foreign Exchange Restrictions, as consolidated in CB Circular No. 960,
in relation to the penal provisions of Sec. 34 of R.A. 265, as amended, . . .;

2. That respondent Judge issued his Order solely on the basis of newspaper reports
(August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe)
concerning the announcement on August 10, 1992 by the President of the
Philippines of the lifting by the government of all foreign exchange restrictions and
the arrival at such decision by the Monetary Board as per statement of Central Bank
Governor Jose Cuisia;

3. That claiming that the reported announcement of the Executive Department on the
lifting of foreign exchange restrictions by two newspapers which are reputable and of
national circulation had the effect of repealing Central Bank Circular No. 960, as
allegedly supported by Supreme Court decisions . . ., the Court contended that it was
deprived of jurisdiction, and, therefore, motu, prop(r)io had to dismiss all the eleven
cases aforementioned "for not to do so opens this Court to charges of trying cases
over which it has no more jurisdiction;"

4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central
Bank Circular or Monetary Board Resolution which as of date hereof, has not even
been officially issued, and basing his Order/decision on a mere newspaper account
of the advance announcement made by the President of the said fact of lifting or
liberalizing foreign exchange controls, respondent judge acted prematurely and in
indecent haste, as he had no way of determining the full intent of the new CB
Circular or Monetary Board resolution, and whether the same provided for exception,
as in the case of persons who had pending criminal cases before the courts for
violations of Central Bank Circulars and/or regulations previously issued on the
matter;

5. That respondent Judge's arrogant and cavalier posture in taking judicial notice
purportedly as a matter of public knowledge a mere newspaper account that the
President had announced the lifting of foreign exchange restrictions as basis for his
assailed order of dismissal is highly irregular, erroneous and misplaced. For the
respondent judge to take judicial notice thereof even before it is officially released by
the Central Bank and its full text published as required by law to be effective shows
his precipitate action in utter disregard of the fundamental precept of due process
which the People is also entitled to and exposes his gross ignorance of the law,
thereby tarnishing public confidence in the integrity of the judiciary. How can the
Honorable Judge take judicial notice of something which has not yet come into force
and the contents, shape and tenor of which have not yet been published and
ascertained to be the basis of judicial action? The Honorable Judge had miserably
failed to "endeavor diligently to ascertain the facts" in the case at bar contrary to Rule
3.02 of the Code of Judicial Conduct constituting Grave Misconduct;

6. That respondent Judge did not even ha(ve) the prudence of requiring first the
comment of the prosecution on the effect of aforesaid Central Bank
Circular/Monetary Board resolution on the pending cases before dismissing the
same, thereby denying the Government of its right to due process;

7. That the lightning speed with which respondent Judge acted to dismiss the cases
may be gleaned from the fact that such precipitate action was undertaken despite
already scheduled continuation of trial dates set in the order of the court (the
prosecution having started presenting its evidence . . .) dated August 11, 1992 to wit:
August 31, September 3, 10, 21, & 23 and October 1, 1992, all at 9:30 o'clock in the
morning, in brazen disregard of all notions of fair play, thereby depriving the
Government of its right to be heard, and clearly exposing his bias and partiality; and

8. That, in fact, the motive of respondent Judge in dismissing the case without even
waiting for a motion to quash filed by the counsel for accused has even placed his
dismissal Order suspect.
Pursuant to a resolution of this Court dated September 8, 1992, respondent judge filed his
comment, 4 contending, inter alia, that there was no need to await publication of the Central Bank (CB)
circular repealing the existing law on foreign exchange controls for the simple reason that the public
announcement made by the President in several newspapers of general circulation lifting foreign
exchange controls was total, absolute, without qualification, and was immediately effective; that having
acted only on the basis of such announcement, he cannot be blamed for relying on the erroneous
statement of the President that the new foreign exchange rules rendered moot and academic the cases
filed against Mrs. Marcos, and which was corrected only on August 17, 1992 but published in the
newspapers on August 18, 1992, and only after respondent judge had issued his order of dismissal dated
August 13, 1992; that the President was ill-advised by his advisers and, instead of rescuing the Chief
Executive from embarrassment by assuming responsibility for errors in the latter's announcement, they
chose to toss the blame for the consequence of their failures to respondent judge who merely acted on
the basis of the announcements of the President which had become of public knowledge; that the "saving
clause" under CB Circular No. 1353 specifically refers only to pending actions or investigations involving
violations of CB Circular No. 1318, whereas the eleven cases dismissed involved charges for violations of
CB Circular No. 960, hence the accused cannot be tried and convicted under a law different from that
under which she was charged; that assuming that respondent judge erred in issuing the order of
dismissal, the proper remedy should have been an appeal therefrom but definitely not an administrative
complaint for his dismissal; that a mistake committed by a judge should not necessarily be imputed as
ignorance of the law; and that a "court can reverse or modify a doctrine but it does not show ignorance of
the justices or judges whose decisions were reversed or modified" because "even doctrines initiated by
the Supreme Court are later reversed, so how much more for the lower courts?"

He further argued that no hearing was necessary since the prosecution had nothing to explain
because, as he theorized, "What explanation could have been given? That the President was talking
'through his hat' (to use a colloquialism) and should not be believed? That I should wait for the
publication (as now alleged by complainants), of a still then non-existent CB circular? . . . As it turned
out, CB Circular No. 3153 (sic) does not affect my dismissal order because the said circular's so-
called saving clause does not refer to CB Circular 960 under which the charges in the dismissed
cases were based;" that it was discretionary on him to take judicial notice of the facts which are of
public knowledge, pursuant to Section 2 of Rule 129; that the contention of complainants that he
acted prematurely and in indecent haste for basing his order of dismissal on a mere newspaper
account is contrary to the wordings of the newspaper report wherein the President announced the
lifting of controls as an accomplished fact, not as an intention to be effected in the future, because of
the use of the present perfect tense or past tense "has lifted," not that he "intends to lift," foreign
exchange controls.

Finally, respondent judge asseverates that complainants who are officers of the Department of
Justice, violated Section 6, Rule 140 of the Rules of Court which provides that "proceedings against
judges of first instance shall be private and confidential" when they caused to be published in the
newspapers the filing of the present administrative case against him; and he emphasizes the fact
that he had to immediately resolve a simple and pure legal matter in consonance with the
admonition of the Supreme Court for speedy disposition of cases.

In their reply 5 and supplemental reply, 6 complainants aver that although the saving clause under Section
16 of CB Circular No. 1353 made specific reference to CB Circular No. 1318, it will be noted that Section
111 of Circular No. 1318, which contains a saving clause substantially similar to that of the new circular, in
turn refers to and includes Circular No. 960. Hence, whether under Circular No. 1318 or Circular No.
1353, pending cases involving violations of Circular No. 960 are excepted from the coverage thereof.
Further, it is alleged that the precipitate dismissal of the eleven cases, without according the prosecution
the opportunity to file a motion to quash or a comment, or even to show cause why the cases against
accused Imelda R. Marcos should not be dismissed, is clearly reflective of respondent's partiality and bad
faith. In effect, respondent judge acted as if he were the advocate of the accused.

On December 9, 1993, this Court issued a resolution referring the complaint to the Office of the
Court Administrator for evaluation, report and recommendation, pursuant to Section 7, Rule 140 of
the Rules of Court, as revised, there being no factual issues involved. The corresponding report and
recommendation, 7 dated February 14, 1994, was submitted by Deputy Court Administrator Juanito A.
Bernad, with the approval of Court Administrator Ernani Cruz-Pao.

The questioned order 8 of respondent judge reads as follows:

These eleven (11) cases are for Violation of Central Bank Foreign Exchange
Restrictions as consolidated in CB Circular No. 960 in relation to the penal provision
of Sec. 34 of R.A. 265, as amended.

The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases; apparently
the other accused in some of these cases, Roberto S. Benedicto, was not arrested
and therefore the Court did not acquire jurisdiction over his person; trial was
commenced as against Mrs. Marcos.

His Excellency, the President of the Philippines, announced on August 10, 1992 that
the government has lifted all foreign exchange restrictions and it is also reported that
Central Bank Governor Jose Cuisia said that the Monetary Board arrived at such
decision (issue of the Philippine Daily Inquirer, August 11, 1992 and issue of the Daily
Globe of the same date). The Court has to give full confidence and credit to the
reported announcement of the Executive Department, specially from the highest
official of that department; the Courts are charged with judicial notice of matters
which are of public knowledge, without introduction of proof, the announcement
published in at least the two newspapers cited above which are reputable and of
national circulation.

Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520,
People vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs.
Crisanto Tamayo, 61 Phil. 225), among others, it was held that the repeal of a penal
law without re-enactment extinguishes the right to prosecute or punish the offense
committed under the old law and if the law repealing the prior penal law fails to
penalize the acts which constituted the offense defined and penalized in the repealed
law, the repealed law carries with it the deprivation of the courts of jurisdiction to try,
convict and sentence persons charged with violations of the old law prior to its
repeal. Under the aforecited decisions this doctrine applies to special laws and not
only to the crimes punishable in the Revised Penal Code, such as the Import Control
Law. The Central Bank Circular No. 960 under which the accused Mrs. Marcos is
charged is considered as a penal law because violation thereof is penalized with
 specific reference to the provision of Section 34 of Republic Act 265, which penalizes
violations of Central Bank Circular No. 960, produces the effect cited in the Supreme
Court decisions and since according to the decisions that repeal deprives the Court
of jurisdiction, this Court motu proprio dismisses all the eleven (11) cases as a
forestated in the caption, for not to do so opens this Court to charges of trying cases
over which it has no more jurisdiction.

This order was subsequently assailed in a petition for certiorari filed with the Court of Appeals,
entitled "People of the Philippines vs. Hon. Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda
R. Marcos," docketed as CA-G.R. SP No. 29349. When required to file her comment, private
respondent Marcos failed to file any. Likewise, after the appellate court gave due course to the
petition, private respondent was ordered, but again failed despite notice, to file an answer to the
petition and to show cause why no writ of preliminary injunction should issue. Eventually, on April 29,
1993, the Court of Appeals rendered a decision 9 setting aside the order of August 13, 1992, and
reinstating Criminal Cases Nos. 92-101959 to 92-101969.

In finding that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in
issuing the order of dismissal, the appellate court held that:

The order was issued motu proprio, i.e., without any motion to dismiss filed by
counsel for the accused, without giving an opportunity for the prosecution to be
heard, and solely on the basis of newspaper reports announcing that the President
has lifted all foreign exchange restrictions.

The newspaper report is not the publication required by law in order that the
enactment can become effective and binding. Laws take effect after fifteen days
following the completion of their publication in the Official Gazette or in a newspaper
of general circulation unless it is otherwise provided (Section 1, Executive Order No.
200). The full text of CB Circular 1353, series of 1992, entitled "Further Liberalizing
Foreign Exchange Regulation" was published in the August 27, 1992 issue of the
Manila Chronicle, the Philippine Star and the Manila Bulletin. Per certification of the
CB Corporate Affairs Office, CB Circular No. 1353 took effect on September 2 . . . .

Considering that respondent judge admittedly had not seen the official text of CB
Circular No. 1353, he was in no position to rule judiciously on whether CB Circular
No. 960, under which the accused Mrs. Marcos is charged, was already repealed by
CB Circular No. 1353. . . .

xxx xxx xxx

A cursory reading of the . . . provision would have readily shown that the repeal of the
regulations on non-trade foreign exchange transactions is not absolute, as there is a
provision that with respect to violations of former regulations that are the subject of
pending actions or investigations, they shall be governed by the regulations existing
at the time the cause of action (arose). Thus his conclusion that he has lost
jurisdiction over the criminal cases is precipitate and hasty. Had he awaited the filing
 of a motion to dismiss by the accused, and given opportunity for the prosecution to
comment/oppose the same, his resolution would have been the result of deliberation,
not speculation.

I. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take
judicial notice is to be exercised by courts with caution; care must be taken that the requisite
notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the
negative. 10

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the
court. 11 The provincial guide in determining what facts may be assumed to be judicially known is that of
notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. 13

To say that a court will take judicial notice of a fact is merely another way of saying that the usual
form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 14 This is
because the court assumes that the matter is so notorious that it will not be disputed. 15 But judicial notice
is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the
court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally
known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly"
known. 16

Things of "common knowledge," of which courts take judicial notice, may be matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and are capable of ready and unquestioned
demonstration. 17 Thus, facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and
so generally understood that they may be regarded as forming part of the common knowledge of every
person. 18

Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper
account which is sometimes even referred to as hearsay evidence twice removed, took judicial
notice of the supposed lifting of foreign exchange controls, a matter which was not and cannot be
considered of common knowledge or of general notoriety. Worse, he took cognizance of an
administrative regulation which was not yet in force when the order of dismissal was issued.
Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes
effective. 19 The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of
common knowledge capable of ready and unquestionable demonstration, which is one of the
requirements before a court can take judicial notice of a fact.

Evidently, it was impossible for respondent judge, and it was definitely not proper for him, to have
taken cognizance of CB Circular No. 1353, when the same was not yet in force at the time the
improvident order of dismissal was issued.
II. Central Bank Circular No. 1353, which took effect on September 1, 1992, further liberalized the
foreign exchange regulations on receipts and disbursements of residents arising from non-trade and
trade transactions. Section 16 thereof provides for a saving clause, thus:

Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in Chapter X of
CB Circular No. 1318 insofar as they are not inconsistent with, or contrary to the
provisions of this Circular, shall remain in full force and effect: Provided, however,
that any regulation on non-trade foreign exchange transactions which has been
repealed, amended or modified by this Circular, violations of which are the subject of
pending actions or investigations, shall not be considered repealed insofar as such
pending actions or investigations are concerned, it being understood that as to such
pending actions or investigations, the regulations existing at the time the cause of
action accrued shall govern.

Respondent judge contends that the saving clause refers only to the provisions of Circular No. 1318,
whereas the eleven criminal cases he dismissed involve a violation of CB Circular No. 960. Hence,
he insists, Circular No. 960 is deemed repealed by the new circular and since the former is not
covered by the saving clause in the latter, there is no more basis for the charges involved in the
criminal cases which therefore warrant a dismissal of the same. The contention is patently
unmeritorious.

Firstly, the second part of the saving clause in Circular No. 1353 explicitly provides that
"any regulation on non-trade foreign transactions which has been repealed, amended or modified by
this Circular, violations of which are the subject of pending actions or investigations, shall not be
considered repealed insofar as such pending actions or investigations are concerned, it being
understood that as to such pending actions or investigations, the regulations existing at the time the
cause of action accrued shall govern." The terms of the circular are clear and unambiguous and
leave no room for interpretation. In the case at bar, the accused in the eleven cases had already
been arraigned, had pleaded not guilty to the charges of violations of Circular No. 960, and said
cases had already been set for trial when Circular No. 1353 took effect. Consequently, the trial court
was and is supposed to proceed with the hearing of the cases in spite of the existence of Circular
No. 1353.

Secondly, had respondent judge only bothered to read a little more carefully the texts of the circulars
involved, he would have readily perceived and known that Circular No. 1318 also contains a
substantially similar saving clause as that found in Circular No. 1353, since Section 111 of the former
provides:

Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and 1028,
including amendments thereto, with the exception of the second paragraph of
Section 68 of Circular 1028, as well as all other existing Central Bank rules and
regulations or parts thereof, which are inconsistent with or contrary to the provisions
of this Circular, are hereby repealed or modified accordingly: Provided, however, that
regulations, violations of which are the subject of pending actions or investigations,
shall be considered repealed insofar as such pending actions or investigations are
 concerned, it being understood that as to such pending actions or investigations, the
regulations existing at the time the cause of action accrued shall govern.

It unequivocally appears from the section above quoted that although Circular No. 1318 repealed
Circular No. 960, the former specifically excepted from its purview all cases covered by the old
regulations which were then pending at the time of the passage of the new regulations. Thus, any
reference made to Circular No. 1318 necessarily involves and affects Circular No. 960.

III. It has been said that next in importance to the duty of rendering a righteous judgment is that of
doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. 20 This
means that a judge should not only render a just, correct and impartial decision but should do so in such a
manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While a
judge should possess proficiency in law in order that he can competently construe and enforce the law, it
is more important that he should act and behave in such a manner that the parties before him should
have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and
favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should
moreover inspire that belief. Like Caesar's wife, a judge must not only be pure but beyond suspicion. 21

Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges
should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote
confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A
judge should be mindful that his duty is the application of general law to particular instances, that ours is a
government of laws and not of men, and that he violates his duty as a minister of justice under such a
system if he seeks to do what he may personally consider substantial justice in a particular case and
disregards the general law as he knows it to be binding on him. Such action may have detrimental
consequences beyond the immediate controversy. He should administer his office with due regard to the
integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a
judge under the sanction of the law. 23 These are immutable principles that go into the very essence of the
task of dispensing justice and we see no reason why they should not be duly considered in the present
case.

The assertion of respondent judge that there was no need to await publication of Circular No. 1353
for the reason that the public announcement made by the President in several newspapers of
general circulation lifting foreign exchange controls is total, absolute, without qualification, and
immediately effective, is beyond comprehension. As a judge of the Regional Trial Court of Manila,
respondent is supposed to be well-versed in the elementary legal mandates on the publication of
laws before they take effect. It is inconceivable that respondent should insist on an altogether
different and illogical interpretation of an established and well-entrenched rule if only to suit his own
personal opinion and, as it were, to defend his indefensible action. It was not for him to indulge or
even to give the appearance of catering to the at-times human failing of yielding to first
impressions. 24 He having done so, in the face of the foregoing premises, this Court is hard put to believe
that he indeed acted in good faith.

IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act
of respondent judge in altogether dismissing sua sponte the eleven criminal cases without even a
motion to quash having been filed by the accused, and without at least giving the prosecution the
basic opportunity to be heard on the matter by way of a written comment or on oral argument, is not
only a blatant denial of elementary due process to the Government but is palpably indicative of bad
faith and partiality.

The avowed desire of respondent judge to speedily dispose of the cases as early as possible is no
license for abuse of judicial power and discretion, 25 nor does such professed objective, even if true,
justify a deprivation of the prosecution's right to be heard and a violation of its right to due process of
law. 26

The lightning speed, to borrow the words of complainants, with which respondent judge resolved to
dismiss the cases without the benefit of a hearing and without reasonable notice to the prosecution
inevitably opened him to suspicion of having acted out of partiality for the accused. Regardless of
how carefully he may have evaluated changes in the factual situation and legal standing of the
cases, as a result of the newspaper report, the fact remains that he gave the prosecution no chance
whatsoever to show or prove that it had strong evidence of the guilt of the accused. To repeat, he
thereby effectively deprived the prosecution of its right to due process. 27 More importantly,
notwithstanding the fact that respondent was not sure of the effects and implications of the President's
announcement, as by his own admission he was in doubt whether or not he should dismiss the
cases, 28 he nonetheless deliberately refrained from requiring the prosecution to comment thereon. In a
puerile defense of his action, respondent judge can but rhetorically ask: "What explanation could have
been given? That the President was talking 'through his hat' and should not be believed? That I should
wait for the publication of a still then non- existent CB Circular?" The pretended cogency of this
ratiocination cannot stand even the minutest legal scrutiny.

In order that bias may not be imputed to a judge, he should have the patience and circumspection to
give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs
might not be adequate to overthrow the case for the other party. A display of petulance and
impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold
neutrality of an impartial judge." 29 At the very least, respondent judge acted injudiciously and with
unjustified haste in the outright dismissal of the eleven cases, and thereby rendered his actuation highly
dubious.

V. It bears stressing that the questioned order of respondent judge could have seriously and
substantially affected the rights of the prosecution had the accused invoked the defense of double
jeopardy, considering that the dismissal was ordered after arraignment and without the consent of
said accused. This could have spawned legal complications and inevitable delay in the criminal
proceedings, were it not for the holding of the Court of Appeals that respondent judge acted with
grave abuse of discretion amounting to lack of jurisdiction. This saved the day for the People since in
the absence of jurisdiction, double jeopardy will not set in. To stress this point, and as a caveat to
trial courts against falling into the same judicial error, we reiterate what we have heretofore declared:

It is settled doctrine that double jeopardy cannot be invoked against this Court's
setting aside of the trial court's judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal cases is denied due
process. . . . .

Where the prosecution is deprived of a fair opportunity to prosecute and prove its
case, its right to due process is thereby violated.
 The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue . . . which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of
jurisdiction . . . . 30

It is also significant that accused Marcos, despite due notice, never submitted either her comment on
or an answer to the petition for certiorari as required by the Court of Appeals, nor was double
jeopardy invoked in her defense. This serves to further underscore the fact that the order of
dismissal was clearly unjustified and erroneous. Furthermore, considering that the accused is a
prominent public figure with a record of influence and power, it is not easy to allay public skepticism
and suspicions on how said dismissal order came to be, to the consequent although undeserved
discredit of the entire judiciary.

VI. To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or
ignorance, it must be clearly shown that although he has acted without malice, he failed to observe
in the performance of his duty that diligence, prudence and care which the law is entitled to exact in
the rendering of any public service. Negligence and ignorance are inexcusable if they imply a
manifest injustice which cannot be explained by a reasonable interpretation, and even though there
is a misunderstanding or error of the law applied, it nevertheless results logically and reasonably,
and in a very clear and indisputable manner, in the notorious violation of the legal precept. 31

In the present case, a cursory perusal of the comment filed by respondent judge reveals that no
substantial argument has been advanced in plausible justification of his act. He utterly failed to show
any legal, factual, or even equitable justification for the dismissal of the eleven criminal cases. The
explanation given is no explanation at all. The strained and fallacious submissions therein do not
speak well of respondent and cannot but further depreciate his probity as a judge. On this point, it is
best that pertinent unedited excerpts from his comment 32 be quoted by way of graphic illustration and
emphasis:

On the alleged ignorance of the law imputed to me, it is said that I issued the Order
dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the basis of
newspaper reports referred to in paragraph 2 of the letter complaint without awaiting
the official publication of the Central Bank Circular. Ordinarily a Central Bank
Circular/Resolution must be published in the Official Gazette or in a newspaper of
general circulation, but the lifting of "all foreign exchange controls" was announced
by the President of the Philippines WITHOUT QUALIFICATIONS; as published in the
Daily Globe, August 11, 1992" the government has lifted ALL foreign exchange
controls," and in the words of the Philippine Daily Inquirer report of the same date
"The government yesterday LIFTED the LAST remaining restrictions on foreign
exchange transactions, . . ." (emphasis in both quotations supplied) not only the
President made the announcement but also the Central Bank Governor Jose Cuisia
joined in the announcement by saying that "the Monetary Board arrived at the
decision after noting how the "partial liberalization" initiated early this year worked."
Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign exchange
transactions, there was no need to await the publication of the repealing circular of
the Central Bank. The purpose of requiring publication of laws and administrative
rules affecting the public is to inform the latter as to how they will conduct their affairs
and how they will conform to the laws or the rules. In this particular case, with the
total lifting of the controls, there is no need to await publication. It would have been
different if the circular that in effect repealed Central Bank Circular No. 960, under
which the accused was charged in the cases dismissed by me, had provided for
penalties and/or modified the provisions of said Circular No. 960.

The Complainants state that the lifting of controls was not yet in force when I
dismissed the cases but it should be noted that in the report of the two (2)
newspapers aforequoted, the President's announcement of the lifting of controls was
stated in the present perfect tense (Globe) or past tense (Inquirer). In other words, it
has already been lifted; the announcement did not say that the government
INTENDS to lift all foreign exchange restrictions but instead says that the
government "has LIFTED all foreign exchange controls," and in the other newspaper
cited above, that "The government yesterday lifted the last remaining restrictions on
foreign exchange transactions". The lifting of the last remaining exchange regulations
effectively cancelled or repealed Circular No. 960.

The President, who is the Chief Executive, publicly announced the lifting of all foreign
exchange regulations. The President has within his control directly or indirectly the
Central Bank of the Philippines, the Secretary of Finance being the Chairman of the
Monetary Board which decides the policies of the Central Bank.

No official bothered to correct or qualify the President's announcement of August 10,

published the following day, nor made an announcement that the lifting of the
controls do not apply to cases already pending, not until August 17 (the fourth day
after my Order, and the third day after report of said order was published) and after
the President said on August 17, reported in the INQUIRER's issue of August 18,
1992, that the "new foreign exchange rules have nullified government cases against
Imelda R. Marcos, telling reporters that the charges against the widow of former
President Marcos "have become moot and academic" because of new ruling(s)
which allow free flow of currency in and out of the country" (Note, parenthetically, the
reference to "new rules" not to "rules still to be drafted"). The INQUIRER report
continues: "A few hours later, presidential spokeswoman Annabelle Abaya said,
RAMOS (sic) had "corrected himself'." "He had been belatedly advised by the
Central Bank Governor Jose Cuisia and Justice Secretary Franklin Drilon that the
Monetary Board Regulation excluded from its coverage all criminal cases pending in
court and such a position shall stand legal scrutiny', Mrs. Abaya, said."

I will elaborate on two points:

1. If the President was wrong in making the August 10 announcement (published in

August 11, 1992, newspapers) and in the August 17 announcement, SUPRA, and
 thus I should have relied on the Presidential announcements, and there is basis to
conclude that the President was at the very least ILL-SERVED by his financial and
legal advisers, because no one bothered to advise the President to correct his
announcements, not until August 17, 1992, a few hours after the President had made
another announcement as to the charges against Imelda Marcos having been
rendered moot and academic. The President has a lot of work to do, and is not, to
my knowledge, a financier, economist, banker or lawyer. It therefore behooved his
subalterns to give him timely (not "belated") advice, and brief him on matters of
immediate and far-reaching concerns (such as the lifting of foreign exchange
controls, designed, among others to encourage the entry of foreign investments).
Instead of rescuing the Chief Executive from embarrassment by assuming
responsibility for errors in the latter's announcement, these advisers have chosen to
toss the blame for the consequence of their failing to me, who only acted on the
basis of announcements of their Chief, which had become of public knowledge.

xxx xxx xxx

The Court strongly feels that it has every right to assume and expect that respondent judge is
possessed with more than ordinary credentials and qualifications to merit his appointment as a
presiding judge in the Regional Trial Court of the National Capital Judicial Region, stationed in the
City of Manila itself. It is, accordingly, disheartening and regrettable to note the nature of the
arguments and the kind of logic that respondent judge would want to impose on this Court
notwithstanding the manifest lack of cogency thereof. This calls to mind similar scenarios and how
this Court reacted thereto.

In one case, an RTC Judge was administratively charged for acquitting the accused of a violation of
CB Circular No. 960 despite the fact that the accused was apprehended with US$355,349.00 while
boarding a plane for Hongkong, erroneously ruling that the State must first prove criminal intent to
violate the law and benefit from the illegal act, and further ordering the return of US$3,000.00 out of
the total amount seized, on the mistaken interpretation that the CB circular exempts such amount
from seizure. Respondent judge therein was ordered dismissed from the government service for
gross incompetence and ignorance of the law. 33

Subsequently, the Court dismissed another RTC judge, with forfeiture of retirement benefits, for
gross ignorance of the law and for knowingly rendering an unjust order or judgment when he granted
bail to an accused charged with raping an 11-year old girl, despite the contrary recommendation of
the investigating judge, and thereafter granted the motion to dismiss the case allegedly executed by
the complainant. 34

Similarly, an RTC judge who was described by this Court as one "who is ignorant of fairly elementary
and quite familiar legal principles and administrative regulations, has a marked penchant for applying
unorthodox, even strange theories and concepts in the adjudication of controversies, exhibits
indifference to and even disdain for due process and the rule of law, applies the law whimsically,
capriciously and oppressively, and displays bias and impartiality," was dismissed from the service
with forfeiture of all retirement benefits and with prejudice to reinstatement in any branch of the
government or any of its agencies or instrumentalities. 35
Still in another administrative case, an RTJ judge was also dismissed by this Court for gross
ignorance of the law after she ordered, in a probate proceeding, the cancellation of the certificates of
title issued in the name of the complainant, without affording due process to the latter and other
interested parties. 36

Only recently, an RTC judge who had been reinstated in the service was dismissed after he
acquitted all the accused in four criminal cases for illegal possession of firearms, on the ground that
there was no proof of malice or deliberate intent on the part of the accused to violate the law. The
Court found him guilty of gross ignorance of the law, his error of judgment being almost deliberate
and tantamount to knowingly rendering an incorrect and unjust judgment. 37

ACCORDINGLY, on the foregoing premises and considerations, the Court finds respondent Judge
Manuel T. Muro guilty of gross ignorance of the law. He is hereby DISMISSED from the service, such
dismissal to carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits,
and disqualification from reemployment in the government service. 38

Respondent is hereby ordered to CEASE and DESIST immediately from rendering any judgment or
order, or continuing any judicial action or proceeding whatsoever, effective upon receipt of this
decision.

SO ORDERED.

G.R. No. L-33116 August 31, 1971

WILSON SERINO, petitioner,

vs.
HON. MARIANO A. ZOSA Presiding Judge, Branch 3, Court of First Instance of Misamis
Occidental and THE PEOPLE OF THE PHILIPPINES, respondents.

Alaric P. Acosta and Ruben Ra. Cagas for petitioner.

Office of the Solicitor General Felix Q. Antonio and Solicitor Jaime M. Lantin for respondent.

MAKALINTAL, J.:

This is a petition for certiorari with preliminary injunction. The petitioner, Wilson Serino, was charged
with murder for the death of one Jose Maghuyop, under an information filed by the Assistant
Provincial Fiscal of Misamis Occidental with Branch III of the Court of First Instance of said province,
presided by now respondent Judge Mariano A. Zosa. After several postponements of the trial,
petitioner having been arraigned and having entered a plea of not guilty, the case was called for
hearing on December 9, 1970.

The transcript of the stenographic notes taken of the proceedings, certified by the court
stenographer-recorder, reads as follows:
 This case was called for trial at about 8:40 on December 9, 1970 and
thereafter

ASST. FISCAL CELSO CONOL: Appearing for the prosecution, Your

Honor. We are ready and that our move is to delegate the handling of
our witnesses to the Private Prosecutor, Ex-Fiscal Diosdado Bacolod,
without, however, relinquishing our control over the same.

ATTY. DIOSDADO BACOLOD: Appearing as private prosecutor, Your

Honor.

ATTY. ALARIC P. ACOSTA: For the defense, we are ready, Your

Honor.

COURT: We have to finish first the last evidence for the defendant in
civil case No. 2762; and will call this case after.

ATTY. BACOLOD: We agree, Your Honor.

(The trial of the civil case proceeded)

After the trial of civil case and at about 10:30 A.M., the same date, this case was
again called and

ATTY. ACOSTA: We are ready, Your Honor.

COURT: Where are the prosecution? (Nobody appeared) Go to

Fiscal's office and notify them. (Bailiff went outside and after few
minutes):

BAILIFF: Fiscal Conol is in the other sala and Atty. Bacolod is not
there.

COURT: Order: For failure of the prosecution to appear this morning,

this case is dismissed with costs de oficio; and the cancellation of the
bail bond posted for the provisional release of the accused.

In the afternoon of the same day, December 9, 1970, the Assistant Provincial Fiscal and the private
prosecutor, filed a motion for reconsideration of the order of dismissal, alleging that after the court
announced that it would first hear the civil case before it and then call the criminal case later they
withdrew from the courtroom, the Fiscal heading for the courtroom of Branch I to handle another
case there, and the private prosecutor for the office of Assistant Provincial Fiscal George L. Siton to
interview a witness who had arrived late, both of them "expecting that the court bailiff would notify
(them) as soon as the trial of the civil case was terminated." They returned to the session hall of
respondent Judge after ten o'clock the same morning, only to find that the case had already been
dismissed.
The motion for reconsideration was supported by the affidavits of the court bailiff and of the chief
clerk of Provincial Fiscal's office. The bailiff affirmed that he was instructed by respondent Judge to
look for Fiscal Celso Conol, whom he found in another sala conducting the direct examination of a
witness in a criminal case then being tried there; that the Fiscal told him to look for the private
prosecutor, Attorney Diosdado Bacolod, but that he did not do so because the instruction he had
received from the Judge was only to look for the Fiscal. The chief clerk, on his part, affirmed that
when the bailiff came to him and inquired as to the whereabouts of Fiscal Conol, the private
prosecutor was actually in the room of Assistant Fiscal Siton, but that he did not volunteer such
information because the bailiff did not ask him about it.

Respondent Judge, in an order dated December 14, 1970, granted the motion for reconsideration "in
the interest of justice," set aside the previous order of dismissal and reinstated the case. It is from
that order of December 14 that the accused, Wilson Serino, came up to this Court on certiorari,
claiming that under the decisions of this Court 1 the dismissal of the case, made unconditionally and
without reservation, was equivalent to an acquittal, which "became final immediately after promulgation
and could no longer be recalled for correction or reconsideration, with or without good reason." In
essence, the ground on which the petition is based is that the reinstatement of the case placed the
petitioner in double jeopardy for the same offense.

The basis of the dismissal of the case in Lagunilla vs. Reyes was the apparent lack of interest on the
part of the complainant to prosecute the case, counterpoised by the constitutional right of the
accused to a speedy trial. It there appeared that when the case was called the Fiscal asked for
postponement on the ground that the complainant and his witnesses were not present although they
had been duly notified of the trial. The accused thereupon moved for dismissal, but the court waited
until later in the morning and granted the motion only when it became obvious that they would not
show up at all. This Court, in holding that the dismissal was proper and that it had the effect of an
acquittal, reviewed previous decisions on this point and said:

In the case of Gandicela vs. Hon. Lutero, L-4069, May 21, 1951, we held that if the
prosecution asks for the postponement of the hearing and the court believes that the
hearing cannot be postponed without violating the right of the accused to a speedy
trial, the court should deny the postponement and proceed with the trial, and if the
fiscal fails to prove the defendant's guilt beyond a reasonable doubt, the court, upon
the motion of the defendant, should dismiss the case; and that this dismissal is not in
reality a dismissal in the general sense but an acquittal based on the failure of the
prosecution to prove the defendant's guilt, which bars another prosecution for the
same offense.

Later, in the case of People vs. Diaz, L-6518, March 30, 1954, wherein the
prosecution was not even present at the trial, we reiterated the Gandicela ruling,
pointing out that there was more reason to dismiss the case upon the instance of the
accused because the prosecution was not even present on the day of the trial so as
to be in a position to proceed with the presentation of evidence to prove the guilt of
the accused, and that said dismissal should likewise be regarded as an acquittal.
Still later, in People v. Tacneng, L-12082, April 30, 1959, wherein the prosecution, after asking for
several postponements, confessed to the court that it was not ready for trial because none of its
witnesses had appeared, and the accused, invoking his constitutional right to a speedy trial, asked
for dismissal, and the court dismissed the case, we also ruled that such dismissal amounted to an
acquittal.

Finally, in the case of People vs. Robles, L-12761, June 29, 1959, wherein the court
ordered dismissal of the case upon the motion of the accused because the
prosecution was still not prepared for trial after several postponements, we again
held that the dismissal was tantamount to an acquittal that would bar further
prosecution of the accused for the same offense.

The case at bar presents a different set of facts. The prosecution was ready to enter into trial, as the
transcript of the proceedings herein-above quoted reveals. Both the Assistant Provincial Fiscal and
the private prosecutor were readily available, having merely stepped out of the courtroom when the
Judge announced that he would first finish the trial of another case. What prompted the Judge to
dismiss the case, as stated by him in his subsequent order of reconsideration, was, that "when (he)
asked for the prosecution panel to come to court for trial, he was told to wait for them," and that he
considered the same an "assault on the dignity of the court." This is not borne out by the transcript of
record; but assuming that the statement was true it serves only to emphasize the groundless and
precipitate character of the order of dismissal. The assault on the court's dignity would have justified
a citation for contempt, but certainly not the outright dismissal of the case, considering that there had
been no violation of the right of the accused to a speedy trial and that, consistently with such right,
the plea of the complainant for redress as well as the paramount interests of justice were no less
entitled to protection from the court. Respondent Judge must have realized this when he recalled his
order of dismissal and reinstated the case; and we hold that under the circumstances he did so
correctly since the said order did not amount to an acquittal, having been issued in disregard of the
requirements of due process.

In the case of People vs. Hon. Amado Gomez, et al., 20 SCRA 293, May 29, 1967, notice of the trial
of a criminal case in the Cebu Court of First Instance was not served upon the Special Prosecutor
who was actively handling the said case. An Assistant Fiscal appeared and manifested that he was
not ready because the records were with the Special Prosecutor, who was even then attending to
another case in Tacloban City. The Fiscal's request for postponement was denied and the case was
dismissed. It was the first such request made by the prosecution, after a considerable delay in the
trial due to several legal maneuvers on the part of the defense. This Court, speaking through Mr.
Justice Jose P. Bengzon, said that the dismissal was purely capricious, a grave abuse of discretion
amounting to excess of jurisdiction, and held:

A purely capricious dismissal of an information as herein involved, moreover,

deprives the State of fair opportunity to prosecute and convict. It denies the
prosecution its day in court. Accordingly, it is a dismissal without due process and,
therefore, null and void. A dismissal invalid for lack of a fundamental requisite, such
as due process, will not constitute a proper basis for the claim of double jeopardy
(People vs. Balisacan, L-26376, August 31, 1966, Tilghman v. Mago [Fla.] 82 So. 2d
136; MaCleary v. Hudspeth, 124 F. 2d 445)
Under the circumstance of the present case there is reason to hold, even more than in the case just
cited, that the order of dismissal issued by respondent Judge was null and void for lack of due
process, and hence was correctly set aside by him thereafter.

WHEREFORE, the writ prayed for is denied and the preliminary injunction is dissolved, without
pronouncement as to costs.
ATTY. REYNALDO P. DIMAYACYAC, petitioner, vs. HON. COURT OF
APPEALS, HON. VICENTE Q. ROXAS, IRENE AGBADA-
CRUZ, SIXTO AGBADA CRUZ, MERCEDES ARISTORENAS and
ROMEO GOMEZ and PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari assailing the Decision of the

[1]

Court of Appeals (CA for brevity) dated November 13, 1998 in CA-G.R. SP
No. 43884, denying Atty. Reynaldo P. Dimayacyacs petition for certiorari and
ruling that the Regional Trial Court (Branch 227) of Quezon City (RTC for
brevity) was correct in denying petitioners motion to quash the information
charging petitioner with falsification of public documents, docketed as Criminal
Case No. Q-93-49988.

The antecedent facts as borne out by the records of the case are
accurately narrated in the CA Decision dated November 13, 1998, thus:

An information for falsification of public documents docketed as Criminal Case No.

Q-91-18037 at the RTC of Quezon City was filed against petitioner along with some
others. That information reads:

The undersigned Assistant City Prosecutor accuses LOURDES ANGELES,

ESTRELLA MAPA, ATTY. PONCIANO R. GUPIT, and ATTY. REYNALDO
P. DIMAYACYAC of the crime of FALSIFICATION OF PUBLIC DOCUMENT
(under Article 172, first and last paragraph in relation to Article 171 paragraph 2 of the
Revised Penal Code), committed as follows:

That on or about the 5th day of 1986, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, all private individuals,
conspiring together, confederating with and mutually helping one another, did then
and there willfully, unlawfully and feloniously commit the act of falsification of
public documents, by then and there falsifying or causing the falsification of the
following documents, to wit:
a) Certification dated March 10, 1986 purportedly signed by a certain Fernando
Dizon, Record Management Analyst of the Bureau of Land, Central Office, Manila;

(b) Report dated May 5, 1986 purportedly signed by a certain Jose Mariano, Chief
Record Management Division of Bureau of Land, Central Office, Manila; and

(c) Sales Certificate and Deed of Assignment allegedly issued by the Bureau of Land
in favor of Lourdes Angeles; that despite the fact that said accused knew all the time
that said documents are fake and spurious used the same in the Petition for
Reconstitution of Records of the technical description of Lots Nos. 755, 777, 778 and
783 of the Piedad Estate covered by TCT No. 14, Decree No. 667, GLRO Record No.
5975 and the issuance of Title thereto filed by Estrella Mapa over and involving the
aforesaid lots in Land Registration Case docketed as LRC Case No. 3369 (86) before
Branch 99, Regional Trial Court, Quezon City and that by virtue of said falsification
and the use of the same as evidence in Court Honorable Presiding Judge Godofredo
Asuncion issued an order dated June 30, 1986 granting said petition, and pursuant
thereto the Register of Deeds of Quezon City issued Transfer Certificates of Titles
Nos. 348156, 348291 and 348292 in the name of Estrella Mapa thereby embracing
and/or encroaching the portions of the properties belonging to Romeo D.
Gomez, Sixto Agbada, Irene Agbada-Cruz and Mercedes Aristorenas whose
properties were embraced and included in the said Transfer Certificates of Titles and
in such amount as may be awarded under the provisions of the Civil Code.

CONTRARY TO LAW.

Before his arraignment, petitioner moved to quash the information on two (2)
grounds. First, that the officer who filed the information had no legal authority to do
so, and second, that more than one offense was charged in the information.

Pending resolution of the motion to quash, petitioner was arraigned.

By Order of August 23, 1991, Judge Benigno T. Dayaw of Branch 80 of the Regional
Trial Court of Quezon City to whose sala Criminal Case No. Q-91-18037 was raffled,
holding that the grant or denial of Motion to Dismiss whether the accused is arraigned
or not is discretionary on the part of the Court, it citing People vs. IAC, L-66939-
41, January 10, 1987, granted the petitioners motion to quash upon the second
ground.Accordingly, the information was quashed.
More than two (2) years after the quashal of the information in Criminal Case No. Q-
91-18037 or on October 19, 1993, the Quezon City Prosecutor filed against the same
accused including petitioner two (2) informations for falsification of public documents
docketed at the Quezon City RTC as Criminal Case Nos. Q-93-49988 and 49989. The
Informations arose from the questioned acts of falsification subject of the earlier
quashed information in Criminal Case No. Q-91-18037.

Petitioner later filed with Branch 103 of the RTC of Quezon City to which the
informations were raffled a motion for the quashal thereof on the ground of double
jeopardy, citing Section 3(h) of Rule 117 of the Revised Rules of Court.

Petitioner argued at the court a quo that he would be placed in double jeopardy as he
was indicted before for the same offenses and the case was dismissed or otherwise
terminated without his express consent.

By the assailed Order of December 18, 1996, public respondent, Judge Vicente Q.
Roxas of Branch 227 of the RTC of Quezon City to which the two (2) informations
against petitioner, et al, were eventually lodged, held that the information in Criminal
Case No. Q-93-49988 involved a different document as that involved in Criminal
Case No. Q-91-18037 which had already been quashed. Resolution of the motion to
quash the information in Criminal Case No. Q-93-49989 was stayed pending the
submission by petitioner of the documents required by the court a quo. Public
respondent thus denied the motion to quash the information in Criminal Case No. Q-
93-49988 and ordered petitioners arraignment, he holding that said case did not place
petitioner in double jeopardy. [2]

Herein petitioner then filed a petition for certiorari before the CA which
denied his petition stating in its Decision that since the Information in Criminal
Case No. Q-91-18037, on petitioners motion, was quashed on the ground that
more than one offense was charged pursuant to Sec. 3 (e) of Rule 117 of the
Revised Rules of Court, he is not placed in double jeopardy by the filing of
[3]

another Information for an offense included in the charge subject of the

Information in Criminal Case No. Q-91-18037. [4]

Hence, herein petition for review on certiorari assigning the following

errors of the CA, to wit:
 I. That the Honorable Court of Appeals ERRED in disregarding the legal doctrine that
THERE IS DOUBLE JEOPARDY, in the case now pending before Respondent
Judge Vicente Q. Roxas;

II. That the Honorable Court of Appeals ERRED in not adhering to the decisions of this
Honorable Supreme Court, as well as to applicable jurisprudence on the matter;

III. That the Honorable Court of Appeals ERRED in not taking into account that based
on the Manifestation and Motion (To Grant Petition) In Lieu of Comment filed by the
Office of the Solicitor General, the ORDER of dismissal of Honorable
Judge Benigno T. Dayaw in Criminal Case No. Q-91-18037 on August 23, 1991 has
become final and executory; and

IV. That the Honorable Respondent Court of Appeals ERRED in concluding that an
ORDER sustaining the motion to quash is not a bar to another prosecution for the
same offense, as it has no legal basis.[5]

On the other hand, the Office of the Solicitor General (OSG) contends that
petitioner, by filing the motion to quash and refusing to withdraw it after he
was arraigned, is deemed to have waived his right against double jeopardy, as
his motion to quash constituted his express consent for the dismissal of the
information. However, the OSG advances the view that the criminal case
against herein petitioner may be dismissed for the inordinate delay in the
conduct of preliminary investigation for the purpose of filing the proper
information, which is a violation of the accuseds constitutional right to due
process of law and to speedy disposition of cases.

Private respondent complainant Irene Agbada-Cruz, in turn, submits that

the Court of Appeals committed no error since the dismissal or quashal of an
information is not a bar to another prosecution except when the motion to
quash is based on the ground that (1) the criminal action or liability has been
extinguished or that (2) the accused has previously been convicted or in
jeopardy of being convicted or acquitted of the offense charged, pursuant to
Section 6 in relation to Section 3, Rule 117 of the Rules of Court, to wit:

Section 6. Order sustaining the motion to quash not a bar to another prosecution;
exception. - An order sustaining the motion to quash is not a bar to another
prosecution for the same offense unless the motion was based on the grounds
specified in Section 3, sub-sections (f) and (h) of this Rule.
Section 3. Grounds. The accused may move to quash the complaint or information on
any of the following grounds:

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

(b) That the court trying the case has no jurisdiction over the
offense charged or the person of the accused;

(c) That the officer who filed the information had no authority to
do so;

(d) That it does not conform substantially to the prescribed form;

(e) That more than one offense is charged except in those cases in
which existing laws prescribe a single punishment for
various offenses;

(f) That the criminal action or liability has been extinguished;

(g) That it contains averments which, if true, would constitute a

legal excuse or justification; and

(h) That the accused has been previously convicted or in

jeopardy of being convicted, or acquitted of the offense
charged. (Emphasis supplied)

Thus, private respondent Cruz argues that since the previous information was
quashed on the ground of duplicity of offenses charged, the subsequent filing
of a proper information is, therefore, not barred.

In their Memorandum, private respondents-complainants Romeo Gomez

and Mercedes Aristorenas contend that (1) jeopardy does not attach where
the dismissal of the information was effected at the instance of the accused;
and (2) there was no violation of petitioners right to a speedy disposition of his
case since he never raised this issue in the trial court nor in the appellate
court, hence, his silence should be interpreted as a waiver of said right to a
speedy trial.
 The issues boil down to (1) whether or not the prosecution of petitioner
under the Information docketed as Criminal Case No. Q-93-49988 would
constitute double jeopardy, considering that when the Information in Criminal
Case No. Q-91-18037 was previously quashed, he had already been
arraigned, and (2) whether or not petitioners constitutional right to a speedy
disposition of his case has been violated.

With regard to the first issue, we are in accord with the ruling of the CA
that not all the elements for double jeopardy exist in the case at
bench. In People vs. Tac-An, we enumerated the elements that must exist for
[6]

double jeopardy to be invoked, to wit:

Thus, apparently, to raise the defense of double jeopardy, three requisites must be
present: (1) a first jeopardy must have attached prior to the second; (2) the first
jeopardy must have been validly terminated; and (3) the second jeopardy must be for
the same offense as that in the first.

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was
dismissed or otherwise terminated without the express consent of the accused (People
vs. Ylagan, 58 Phil. 851).

Was the duplicitous information a valid indictment? We answer in the

affirmative. In People vs. Bugayong, we ruled that when an appellant fails to
[7]

file a motion to quash within the time prescribed under Section 1, Rule 117 of
the Rules of Court, he is thus deemed to have waived the defect in the
Information. In People vs. Manalili, we held that an accused, who fails to
[8]

object prior to arraignment to a duplicitous information, may be found guilty of

any or all of the crimes alleged therein and duly proven during the trial, for the
allegation of the elements of such component crimes in the said information
has satisfied the constitutional guarantee that an accused be informed of the
nature of the offense with which he or she is being charged. Verily, a
duplicitous information is valid since such defect may be waived and the
accused, because of such waiver, could be convicted of as many offenses as
those charged in the information and proved during trial.
 The validity of the information having been established, we go on to
examine whether the other requisites for double jeopardy to attach are
present. In the present case, although there was a valid indictment before a
competent court and petitioner, as the accused, had already been arraigned
therein, entering a valid plea of not guilty, the last requisite that the case was
dismissed or otherwise terminated without his express consent, is not present.

It should be noted that the termination of Criminal Case No. Q-91-18037

was upon motion of petitioner who, on April 1, 1991, filed with the court an
Urgent Motion to Quash which was granted by Resolution dated August 23,
1991. In Sta. Rita vs. Court of Appeals, we held that the reinstatement of
[9]

criminal cases against the accused did not violate his right against double
jeopardy since the dismissal of the information by the trial court had been
effected at his own instance when the accused filed a motion to dismiss on
the grounds that the facts charged do not constitute an offense and that the
RTC had no jurisdiction over the case. In this case, considering that since the
dismissal of the previous criminal case against petitioner was by reason of his
motion for the quashal of the information, petitioner is thus deemed to have
expressly given his consent to such dismissal. There could then be no double
jeopardy in this case since one of the requisites therefore, i.e., that the
dismissal be without accuseds express consent, is not present.

As to whether the subsequent filing of the two informations docketed as Q-

93-49988 and Q-93-49989 constitutes a violation of petitioners constitutional
right to a speedy disposition of cases, we rule in the negative. We are not
[10]

convinced by the OSGs assertion that the cases of Tatad vs.

Sandiganbayan or Angchangco, Jr. vs. Ombudsman, are applicable to the
[11] [12]

case before us. We see differently. There is no factual similarity between this
case before us and the cases of Tatad and Angchangco.

In the Tatad case, there was a hiatus in the proceedings between the
termination of the proceedings before the investigating fiscal on October 25,
1982 and its resolution on April 17, 1985. The Court found that political
motivations played a vital role in activating and propelling the prosecutorial
process against then Secretary Francisco S. Tatad. In the Angchangco case,
[13]

the criminal complaints remained pending in the Office of the Ombudsman for
more than six years despite the respondents numerous motions for early
resolution and the respondent, who had been retired, was being unreasonably
deprived of the fruits of his retirement because of the still unresolved criminal
complaints against him. In both cases, we ruled that the period of time that
elapsed for the resolution of the cases against the petitioners therein was
deemed a violation of the accuseds right to a speedy disposition of cases
against them.

In the present case, no proof was presented to show any persecution of

the accused, political or otherwise, unlike in the Tatad case. There is no
showing that petitioner was made to endure any vexatious process during the
two-year period before the filing of the proper informations, unlike in
the Angchangco case where petitioner therein was deprived of his retirement
benefits for an unreasonably long time. Thus, the circumstances present in
the Tatad and Angchangco cases justifying the radical relief granted by us in
said cases are not existent in the present case.

We emphasize our ruling in Ty-Dazo vs. Sandiganbayan where we held [14]

that:

The right to a speedy disposition of cases, like the right to a speedy trial, is deemed
violated only when the proceedings is attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and
secured, or when without cause or unjustifiable motive, a long period of time is
allowed to elapse without the party having his case tried. In the determination of
whether or not that right has been violated, the factors that may be considered and
balanced are: the length of the delay the reasons for such delay, the assertion or failure
to assert such right by the accused, and the prejudice caused by the delay.

A mere mathematical reckoning of the time involved, therefore, would not be

sufficient. In the application of the constitutional guarantee of the right to speedy
disposition of cases, particular regard must also be taken of the facts and
circumstances peculiar to each case. (Emphasis supplied)

Thus, we shall examine how such aforementioned factors affected herein

petitioners right.
 As to the length of delay, it is established that the prosecution did not take
any action on petitioners case for two years. From the time that Criminal Case
No. Q-91-18037 was dismissed on August 23, 1991, the prosecution failed to
effect the very simple remedy of filing two separate informations against
petitioner until October of 1993. Indeed, there was a delay in the refiling of the
proper informations. However, the prosecution was never given the
opportunity to explain the circumstances that may have caused such delay
precisely because petitioner never raised the issue of the length of time it took
the prosecution to revive the case. There is nothing on record to show what
happened during the two-year lull before the filing of the proper
informations. Hence, it could not be ascertained that peculiar situations
existed to prove that the delay was vexatious, capricious and oppressive, and
therefore, a violation of petitioners constitutional right to speedy disposition of
cases.

What the records clearly show is that petitioner never asserted his right to
a speedy disposition of his case. The only ground he raised in assailing the
subsequent filing of the two informations is that he will be subjected to double
jeopardy. It was only the OSG that brought to light the issue on petitioners
right to a speedy disposition of his case, and only when the case was brought
to the appellate court on certiorari. Even in this petition before us, petitioner
did not raise the issue of his right to a speedy disposition of his case. Again, it
was only the OSG that presented such issue to us in the Brief for the State
which was only then adopted by petitioner through a Manifestation
dated August 3, 1999. We are not convinced that the filing of the informations
against petitioner after two years was an unreasonable delay. Petitioner
himself did not really believe that there was any violation of his right to a
speedy disposition of the case against him.

The case which is more in point with the present one before us is Dela
Pea vs. Sandiganbayan where we ruled that petitioner therein, for failing to
[15]

assert their right to a speedy disposition of their cases, was deemed to have
waived such right and thus, not entitled to the radical relief granted by the
Court in the cases of Tatad and Angchangco. The factual circumstances
surrounding herein petitioners case do not demonstrate that there was any
violation of petitioners right to a speedy disposition of his case.
 WHEREFORE, the petition is hereby DENIED for lack of merit. The
temporary restraining order issued pursuant to our Resolution dated January
17, 2000 is hereby LIFTED and the Regional Trial Court of Quezon City
(Branch 227) is hereby ORDERED to proceed with dispatch with petitioners
arraignment in Criminal Case No. Q-93-49988.

SO ORDERED.
G.R. No. L-49375 February 28, 1979

LEOPOLDO SALCEDO, petitioner,

vs.
HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF THE
PHILIPPINES, respondents.

Atienza Law Office for petitioner.

Office of the Solicitor General for respondents.

MAKASIAR, J.:

This is a petition for review on certiorari with preliminary injunction of the order of respondent Judge
Filemon H. Mendoza, dated May 8, 1978, setting aside the order of dismissal dated March 28,1978
issued by him in Criminal Case No. C-1061 entitled "People of the Philippines, Plaintiff, versus
Leopoldo Salcedo, Accused."

The record shows that on November 11, 1977, Provincial Fiscal Nestor M. Andrada of Oriental
Mindoro filed a criminal information of homicide through reckless imprudence against the herein
petitioner Leopoldo Salcedo, docketed as Criminal Case No. C-1061 of the Court of First Instance of
Oriental Mindoro, Branch I.

Upon arraignment on December 19, 1977, petitioner entered a plea of not guilty and the case was
then set for trial on the merits on January 25, 1978. When the case was called for trial on that date,
Provincial Fiscal Nestor M. Andrada asked for postponement to February 22, 1978, which was
granted, for trial on February 22, 1978, which was granted, because the accused failed to appear.
When the case was called for trial on February 22, 1978, the prosecution, through Assistant
Provincial Fiscal Emmanuel S. Panaligan, once more moved for its postponement and the case was
reset for trial on March 28, 1987.

On March 28, 1987, when the case was called for trial, no prosecuting fiscal appeared for the
prosecution. A private prosecutor, Atty. Juan P. Adzuarra, who withdrew his appearance from the
case and reserved the right to file a separate civil action, moved for its postponement in order to give
the prosecution another chance because they intend to request the Ministry of Justice to appoint a
special prosecutor to handle the case. The trial court, however, denied the said motion. Whereupon,
the petitioner, through counsel, Atty. Edgardo

Aceron, moved for the dismissal of the criminal case against him invoking his constitutional right to
speedy trial and respondent Judge issued an order dismissing the case, the pertinent portion of
which reads as follows:

Atty. Edgardo Aceron moved that considering the fact that this is the third time that
this case was postponed always at the instance of the fiscal although the first
 postponement was made by the provincial fiscal in behalf of the accused who failed
to appear, the Court orders the dismissal of this case with costs de officio.

Although the government is interested in the prosecution of this case, the Court must
also take into consideration the interest of the accused for under the Constitution he
is entitled to a speedy administration of justice, hence the dismissal of the case.

IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A, rec.).

On the same day, the prosecution, through Assistant Provincial Fiscal Arthur B. Panganiban, filed a
motion to reconsider the above order (Annex B, Petition, p. 15. rec.). In an order dated March 29,
1978, the trial court denied the motion "for lack of merit, there being no assurance that the
procecuting fiscal will promptly and adequately prosecute the case (Annex C, Petition, p. 16, rec.).
His first motion for reconsideration having been denied, Assistant Provincial Fiscal filed a filed a
second motion for reconsideration which the court set for hearing to April 20, 1978 (Annex D,
Petition, p. 17, rec.).

It appears that on April 20, 1978, the trial court issued an order requiring both parties to submit within
five (5) days from that date their respective pleadings (Annex E, Petition, p. 19, rec.). However, the
parties failed to comply with the said order. On May 8, 1978, respondent Judge entered the order
here asked to be reviewed, setting aside the order of dismissal dated March 28, 1978 and ordering
that the case be set for trial on June 5, 1978, as follows:

Considering that both parties failed to comply with the order of the is Court dated
April 20, 1978 giving them five to days from that date to submit before the Court their
respective pleadings. the Court in the interest of justice sets aside the order of this
Court dated March 28, 1978.

Conformably with the above, let the trial of this case be set to June 5, 1978 at 1:30
o'clock in the afternoon.

Let the parties be notified accordingly.

SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied).

Petitioner learned for the first time about the existence of the above order an June 5, 1978, thus he
filed on June 16, 1978 a motion for reconsideration of the said order alleging that the dismissal of the
criminal case against him was equivalent to an acquittal and reinstatement of the same would place
him twice in joepardy for the same offense (Annex F, Petition, p. 20, rec.).

On June 20, 1978, the trial court issued an order denying petitioner's motion for reconsideration and
setting the case for trial on July 20, 1978 (Annex G, Petition, p. 24, rec.). Unable to obtain
reconsideration of the May 8, 1978 order, petitioner filed the present petition for certiorari with
preliminary injunction on November 29, 1978 reiterating his contention that the dismissal of the
criminal case. which was upon his motion, predicate on his constitutional right to a speedy trial,
amounts to an acquittal, and therefore the reinstatement of the same criminal case against him
would violate his right against double jeopardy.

In our resolution of December 8, 1978. the Court required the respondents to comment on the
petition. The Solicitor General, on behalf of the respondents, filed his comment on January 26, 1979
agreeing with the petitioner that "a reinstatement of this case would operate to violate his right
against double jeopardy" (p. 4, Comment, p. 31, rec.).

The Stand of the petitioner and the solicitor General is well taken. Time and again, We have said that
the dismissal of a criminal case predicated on the right of the accused to speedy trial, amounts to an
acquittal on the merits which bars the subsequent prosecution of the accused for the same offense.

Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951), We said:

If the defendant wants to exercise his constitutional right to a speedy trial, he should
ask, not for the dismissal but for the trial of the case. If the prosecution asks for the
postponement of the hearing and the court believes that the hearing cannot be
postponed anymore without violating the night of the accused to a speedy trial, the
court shall deny the postponement and proceed with the trial and require the fiscal to
present the witnesses for the prosecution; and if the fiscal does not or cannot
produce his evidence and consequently fails to prove the defendant's guilt beyond
reasonable doubt, the Court, upon the motion of the defendant, shall dismiss the
case. Such dismissal is not in reality a mere dismissal although it is generally so
called but an acquittal of the defendant because of the prosecution's .failure to prove
the guilt of the defendant, and it will be a bar to another prosecution for the same
offense even though it was ordered by the Court upon motion or with the express
consent of the defendants, in exactly the same way as a judgment of acquittal
obtained upon the defendants motion (People vs. Salico, 84 Phil. 722). (emphasis
supplied).

And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954), wherein the prosecution
failed to appear on the day of the trial, We reiterated the Gandicela case, doctrine stating that:

... Here the prosecution was not even present on the day of the trial so as to be in a
position to proceed with the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the prosecution without asking for
postponement or giving any explanation, just failed to appear. So the dismissal of the
case, tho at the Instance of defendant Diaz may, according to what we said in the
Gandicela case,be regarded as an acquittal. (emphasis supplied).

Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court dismissed the case
upon the motion of the accused for failure of the prosecution to produce its evidence, We held that:

The defendant was entitled to a speedy trial, ... The defendant was placed in
jeopardy of punishment for the offense charged in the information and the annulment
 or setting aside of the order of dismissal would place him twice in jeopardy of
punishment for the same offense.

Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the Court ordered the
dismissal of the case upon the motion of the accused because the prosecution was not ready for trial
after several postponements, this court held that:

... when criminal case No. 1793 was called for hearing for the third time and the fiscal
was not ready to enter into trial due to the absence of his witnesses, the herein
appellees had the right to object to any further postponement and to ask for the
dismissal of the case by reason of their constitutional right to a speedy trial; and if
pursuant to that objection and petitioner for dismissal the case was dismissed, such
dismissal amounted to an acquittal o" the herein appellees which can be invoked as
they did, in a second prosecution for the same offense. (emphasis supplied).

Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a similar factual setting as
that of People vs, Tacneng, supra We ruled that:

In the circumstances, we find no alternative than to hold that the dismissal of

Criminal Case No. 11065 is not provisional in character but one which is tantamount
to acquittal that would bar further prosecution of the accused for the same offense.

Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960), this Court pointed out
that:

... where the fiscal fails to prosecute and the judge dismiss the case, the termination
is not real dismissal but acquittal because the prosecution failed to prove the case
when the trial ,wherefore came.

And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29, 1961), where the court
dismissed the case because of the apparent lack of interest of the complainant to prosecute the
case, this Court again ruled that:

Such dismissal made unconditionally and without reservation, after plea of not guilty,
and apparently predicated on the constitutional right of the accused to a speedy trial
is, ... equivalent to an acquittal. And being an order of acquittal, it became final
immediately after promulgation and could no longer be recalled for correction or
reconsideration (People vs. Sison, L-11669, January 30, 1959; Catilo Abaya, 94 Phil.
1014; 50 Off. Gaz., [6] 2477; People vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.]
71), with or without good reason.

In the more recent case of People vs. Cloribel (11 SCRA 805, August 31, 1964) where the Court
again ordered the dismissal of the case upon notion of the accused because of the failure of the
prosecution to appear, WE had occasion again to reiterate Our previous rulings, thus:
 ... the dismissal here complained of was not truly a a "dismissal" but an acquittal. For
it was entered upon the defendant's insistence on their contitutional right to speedy
trial and by reason of the prosecution's failure to appear on the date of trial.

In the present case, the respondent Judge dismissed the case, upon the motion of the petitioner
invoking his constitutional right to speedy trial, because the prosecution failed to appear on the day
of the trial on March 28, 1978 after it had previously been postponed twice, the first on January 26,
1978 and the second on February 22, 1978.

The effect of such dismissal is at once clear Following the established jurisprudence, a dismiss
predicated on the right of the accused to speedy trial upon his own motion or express consent,
amounts to an acquittal which will bar another prosecution of the accused for the same offense This
is an exception to the rule that a dismissal upon the motion or with the express consent of the
accused win not be a bar to the subsequent prosecution of the accused for the same offense as
provided for in Section 9, Rule 113 of the Rules of Court. The moment the dismissal of a criminal
case is predicated on the right of the accused to speedy trial even if it is upon his own motion or
express consent, such dismissal is equivalent to acquittal And any attempt to prosecute the accused
for the same offense will violate the constitutional prohibition that "no person shall be twice put in
jeopardy of punishment for the same offense (New Constitution, Article IV, Sec 22).

The setting aside by the respondent Judge on May 8, 1978 of the order of dismissal of March 28,
1978 and thereby reviving or reinstating Criminal Case No. C-1061 places the petitioner twice in
jeopardy for the offense The respondent Judge therefore committed a grave abuse of discretion in
issuing the order of May 8, 1978 setting aside the order of dismiss issued on March 28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE CHALLENGED ORDER DATED
MAY 8, 1978, IS HEREBY SET ASIDE AS NULL AND VOID. NO COSTS.

SO ORDERED
G.R. No. L-43790 December 9, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE CITY COURT OF SILAY, ERNESTO DE LA PAZ, PACIFICO SENECIO, JR. y SEBUSA,
ROMEO MILLAN y DELEJERO and WILFREDO JOCHICO y MAGALONA, respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and
Solicitor Enrique M. Reyes for petitioner.

Hilado, Hagad & Hilado as private prosecutors.

Benjamin Z. Yelo, Sr. for private respondent Romeo Millan.

Ciceron Severino and Emeterio Molato for other private respondents.

MUOZ PALMA, J.:

This is a Petition for Review jointly filed by the City Fiscal of Silay City, Marcelino M. Paviera, and the
Law Offices of Hilado, Hagad & Hilado, the latter as private prosecutors, praying that an order of the
City Court of Silay dated December 19, 1975, issued by Judge Reynaldo M. Alon, dismissing
Criminal Case No. 7124-C entitled "People vs. Ernesto de la Paz, et al." be set aside and that
respondent court be directed to continue with the trial of the aforementioned case. *

In compliance with Our Resolution of July 21, J976, the Office of the Solicitor General filed its
comment on October 13, 1974, joining the Petitioner's prayer that the order of respondent court of
December 19, 1975, be reversed and the case remanded for further proceedings.

The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa
Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by
private individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal
Code, alleged to have been committed as follows.

That sometime on January 4, 1974, at Hawaiian-Philippine Company, Silay City,

Philippines, and within the jurisdiction of this Honorable Court, the accused Ernesto
de la Paz, overseer of Hda. Malisbog belonging to Deogracias de la Paz, and the
other three accused, scalers of Hawaiian-Philippine Company, with intent of gain and
to cause damage by conniving, cooperating and mutually helping one another did
then and there wilfully, unlawfully and feloniously alter or falsify the sugar cane
weight report card or "tarjeta", a private document showing the weight of sugarcane
belonging to Deogracias de la Paz, particularly those loaded in cane cars Nos. 1686,
1743 and 1022 by increasing the total actual weight of 22.005 tons to 27.160 tons for
said three cane cars, thereby causing damage to the central and other cane planters
of about 8.68 piculs of sugar valued in the total amount of P618.19, to the damage
 and prejudice of Hawaiian Central and other sugarcane planters adhered thereto in
the aforestated amount of P618.19.

IN VIOLATION OF PARAGRAPH 2, ART. 172, R.P.C. (p. 14, rollo) Evidence was
presented by the prosecution showing that:

On January 4, 1974, accused Pacifico Senecio, Jr. Romeo Millan and Wilfredo
Jochico who were then scalers on duty that day at the Hawaiian-Philippine Company,
weighed cane cars Nos. 1743,1686 and 1022 loaded with sugar canes belonging to
Deogracias de la Paz. The weight of the sugar canes were reflected on the weight
report cards (H.P. Co. Lab. Form No. 1) or "tarjetas" showing that for car No. 1743
8.920 tons (Exhibit "B-1"), for Car No. 1686 8.970 tons (Exhibit "C-1") for car No.
1022 8.875 tons or a total weight of 26.765 tons. However, they did not submit
said "tarjetas" to the laboratory section, instead, they substituted "tarjetas" showing a
heavier weight for car No. 1743 10.515 tons (Exhibit "B"), car No. 1686 10.525
tons (Exhibit "C") and car No. 1022 10.880 tons (Exhibit "D") with a total of 27.160
tons or an additional of 5.155 tons. These were the "tarjetas" submitted to the
laboratory section. Exhibits "B-1", "C-1" and "D-1" were taken later by the
prosecution witness PC Sgt. Rogelio Sevilla from the wife of Pacifico Senecio, Jr.
(pp. 15-16, rollo, Order of December 19, 1975).

After the prosecution had presented its evidence and rested its case, private respondents moved to
dismiss the charge against them on the ground that the evidence presented was not sufficient to
establish their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its
order of December 19, 1975, dismissing the case with costs de oficio principally on the ground that
the acts committed by the accused as narrated above do not constitute the crime of falsification as
charged. Reasoning out his order, Judge Alon said:

To be convicted under paragraph 2, Article 172, an accused should have committed

one of the eight acts of falsification enumerated under Article 171, R.P.C. Is the act of
substituting the "tarjetas" with higher cane weight for the ones with lower cane weight
fall under one of the acts enumerated. After going over the acts of falsification one by
one and trying to correlate the act of the accused with each of them, the Court finds
that the said act could not possibly be placed under any of them. Inclusio unius est
exclusio alterius, the inclusion of one is the exclusion of the other. Following this
maxim, we cannot just include the act of substitution as among those acts
enumerated under Article 171. And, under the rule of statutory construction, penal
laws should be liberally construed in favor of the accused. This Court, therefore, is of
the opinion that the accused have not committed the act of falsification with which
they are charmed. Obviously, it follows that there could be no use of falsified
document since there is no falsified document.

The imputed acts of the accused in making the substitution, if true, is repugnant to
the human sense of right and wrong. But, however reprehensible the act may be, it is
not punishable unless there is a showing that there is a law which defines and
penalizes it as a crime. Unless there be a particular provision in the Penal Code or
 Special Law that punishes the act, even if it be socially or morally wrong, no criminal
liability is incurred by its commission. (U.S. vs. Taylor, 28 Phil. 599)

xxx xxx xxx

Wherefore, the motion is hereby granted and the case dismissed with costs de
oficio ... (pp. 17-18, rollo)

In their comment on this Petition, private respondents claim that there was no error committed by
respondent court in dismissing the case against them for insufficiency of evidence and that for this
Court to grant the present petition would place said respondents in double jeopardy.

On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as
the case was dismissed upon motion of the accused, and the dismissal having been made with their
consent, they waived their defense of double jeopardy, citing various cases in support thereof. (pp.
58-59, rollo, Comment of the Solicitor General)

We disagree with the position taken by the Acting Solicitor General Hugo E. Gutierrez, Jr. that the
plea of double jeopardy is not available in the instant situation.

It is true that the criminal case of falsification was dismissed on motion of the accused; however, this
was a motion filed after the prosecution had rested its case, calling for an appreciation of the
evidence adduced and its sufficiency to warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an acquittal of the accused.

Thus, in People vs. Acosta, L-23657, October 29, 1968, this Court dismissed an appeal taken by
the People against an order of the Court of First Instance of Ilocos Norte dismissing a criminal case
upon motion of the accused after the presentation of evidence by the prosecution as such appeal if
allowed would place the accused in double jeopardy. There the accused was charged with estafa by
obtaining from Pedro Miguel a ring valued at P16,500.00 and issuing a check for $5,000.00 in
Payment thereof which turned out later to be counterfeit to the damage and prejudice of said Pedro
Miguel in the aforementioned amount of P16,500.00. After the presentation of the evidence of the
prosecution, the accused moved to dismiss the case on the ground that the evidence showed that
the ring belonged to somebody else, Banang Jaramillo, and not to Pedro Miguel as alleged in the
information and that the element of damage was absent. This motion was opposed by the Assistant
Provincial Fiscal but notwithstanding said opposition, the trial court dismissed the case on the
ground that Pedro Miguel was a mere agent of the true owner of the ring and therefore not the real
offended party. The Assistant Provincial Fiscal appealed to this Court, but the Solicitor General
moved for the dismissal of the appeal on the ground that it would place the accused in double
jeopardy, and the Court agreed with the Solicitor General, stating that it cannot be seriously
questioned that the trial court had grievously erred in his conclusion and application of the law, and
in dismissing outright the case; however, the error cannot now be remedied by an appeal because it
would place the accused in double jeopardy. (per Eugenio Angeles, J., 25 SCRA 823,826)

In the earlier case of Catilo vs. Hon. Abaya, May 14, 1954, petitioner Catilo was charged with murder
before the Court of First Instance of Batangas presided by respondent Judge. Petitioner was
arraigned and after the prosecution had rested its case petitioner moved for the dismissal of the
charge for insufficiency of evidence. This motion was granted by the Judge and his order was
promulgated in open court to the accused. Later in the day, Judge Abaya set aside his order of
dismissal motu proprio and scheduled the case for continuation of the trial on specific dates. A
motion for reconsideration was filed by the defense counsel but because respondent Judge failed to
take action, the accused filed an original action for certiorari with this Court. In granting relief to
petitioner Catilo, the Court, through Justice Marcelino R. Montemayor, held:

From whatever angle we may view the order of dismissal Annex "A", the only
conclusion possible is that it amounted to an acquittal. Whether said acquittal was
due to some "misrepresentation of facts" as stated in the order of reconsideration,
which alleged misrepresentation is vigorously denied by the defendant-petitioner, or
to a misapprehension of the law or of the evidence presented by the prosecution, the
fact is that it was a valid order or judgment of acquittal, and thereafter the respondent
Judge himself advised the accused in open court that he was a free man and could
not again be prosecuted for the same offense.

The inherent powers of a court to modify its order or decision, under section 5, Rule
124 of the Rules of Court claimed for the respondent to set aside his order of
dismissal, does not extend to an order of dismissal which amounts to a judgment of
acquittal in a criminal case; and the power of a court to modify a judgment or set it
aside before it has become final or an appeal has been perfected, under section 7,
Rule 116 of the Rules of Court, refers to a judgment of conviction and does not and
cannot include a judgment of acquittal.

In conclusion, we hold that to continue the criminal case against the petitioner after
he had already been acquitted would be putting him twice in jeopardy of punishment
for the same offense. ... (94 Phil. 1017)

The cases cited by the Acting Solicitor General are not applicable to the situation now before Us
because the facts are different. In Co Te Hue vs. Judge Encarnacion , 94 Phil. 258, the case was
dismissed provisionally with the express consent of the accused. The same occurred in People vs.
Togle, 105 Phil. 126 there was a provisional dismissal upon express request of the counsel for the
accused, In Gandicela vs. Lutero, 88 Phil. 299, it was the accused who asked for the dismissal of the
case because the private prosecutor was not in court to present the prosecution's evidence and the
Municipal Court of the City of Iloilo dismissed the case without prejudice to the refiling of the charge
against the accused. 1 In People vs. Romero, 89 Phil. 672, the dismissal was made at the instance of the
accused because the prosecution was also not ready with its evidence. The case of People vs. Belosillo,
9 SCRA 836, is not applicable either, because the order of dismissal of the Information was made before
arraignment, hence, the accused was not yet placed in jeopardy of punishment for the offense charged.

In the case of the herein respondents, however, the dismissal of the charge against them was one
on the merits of the case which is to be distinguished from other dismissals at the instance of the
accused. All the elements of double jeopardy are here present, to wit: (1) a valid information
sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of
competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had
rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits,
the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.

It is clear to Us that the dismissal of the criminal case against the private respondents was
erroneous.

As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged
with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the
accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in
"tarjetas" which were submitted to the laboratory section of the company. The act of making a false
entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having
made untruthful statements in a narration of facts which they were under obligation to accomplish as
part of their duties- Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as
scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the
latter.

However erroneous the order of respondent Court is, and although a miscarriage of justice resulted
from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil, 1133, such error
cannot now be righted because of the timely plea of double jeopardy.

In Nieto, the background of the case is as follows: On September 21, 1956, an Information for
homicide was filed with the Court of First Instance of Nueva Ecija against Gloria Nieto who, upon
arraignment pleaded guilty to the charge but -notwithstanding that plea, the trial judge acquitted her
on the Page 254 ground that although the accused was a minor "over 9 and under 15 years old" the
Information failed to allege that she acted with discernment. Thereafter the prosecution filed another
Information for the same offense stating therein that the accused Gloria Nieto was "a child between
9 and 15 years" and alleging in express terms that she acted with discernment. The defense filed a
motion to quash this second Information on grounds of double jeopardy, and the trial court already
presided by another Judge, Hon. Felix V. Makasiar, now Justice of this Court, granted the motion.
The prosecution appealed to this Court from said order. In its Decision, the Court dismissed the
appeal and sustained the order of then Judge Makasiar, deploring that as a result of a mistaken view
taken by the trial judge who acquitted the accused Gloria Nieto despite her plea of guilty there was a
miscarriage of justice which cannot be righted and which leaves the Court no choice bat to affirm the
dismissal of the second Information for reasons of double jeopardy. 2

We cannot but express Our strong disapproval of the precipitate action taken by Judge Alon in
dismissing the criminal case against the private respondents at that stage of the trial. A thorough and
searching study of the law, the allegations in the Information, and the evidence adduced plus a more
circumspect and reflective exercise of judgment, would have prevented a failure of justice in the
instant case. We exhort Judge Alon to take into serious consideration what We have stated so as to
avoid another miscarriage of justice.

IN VIEW OF THE FOREGOING, We are constrained to DISMISS this Petition of the People. Without
pronouncement as to costs. Let copy of this Decision be entered in the personal file of Judge
Reynaldo Alon.
So Ordered.