and/or writ of preliminary injunction to reverse and set aside the following

EN BANC issuances of the Commission on Elections (COMELEC) En Banc:

JUANITO R. RIMANDO, G.R. No. 176364 1) Resolution[1] promulgated on October 11, 2005 and
Petitioner, 2) Resolution[2] promulgated on January 5, 2007 in Election Offense
Present:
(E.O.) Case No. 01-130 for Violation of the Omnibus Election Code. The
PUNO, C.J., first assailed Resolution granted private respondents Motion for
QUISUMBING,*
YNARES-SANTIAGO, Reconsideration and directed the COMELECs Law Department to file the
CARPIO,*
proper information against petitioner for violation of Article XXII, Section
CORONA,
CARPIO MORALES, 261, paragraph (s) of the Omnibus Election Code, while the second
CHICO-NAZARIO,
- versus - VELASCO, JR., Resolution denied the petitioners motion for reconsideration.
NACHURA,
LEONARDO-DECASTRO,
BRION, The factual antecedents:
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ. On July 13, 2001, herein private respondent lodged a

Complaint[3] with the COMELEC, Office of the Provincial Election

Promulgated:
COMMISSION ON Supervisor, Santa Cruz Laguna, accusing Jacinto Carag, Jonry Enaya and
ELECTIONS AND NORMA September 18, 2009
O. MAGNO, herein petitioner Juanito R. Rimando of violating Section 2, paragraph (e)
Respondents.
x---------------------------------------------------------------------------------------------- x and Section 3, paragraph (d) of COMELEC Resolution No. 3328[4] in relation

to Section 261, paragraph (s) of the Omnibus Election Code[5] and Section 32
DECISION
of Republic Act (R.A.) No. 7166.[6] The Complaint included the following
LEONARDO-DE CASTRO, J.: narration of facts:[7]

Before the Court is a petition for certiorari under Rule 65 of the That on or about February 27, 2001, and/or during
the election period from January 2, 2001 to June 13,
Rules of Court with prayer for the issuance of a temporary restraining order 2001, in Quezon City and Santa Rosa, Laguna, and within
 the jurisdiction of this Honorable Commission, xxx
JUANITO R. RIMANDO, being then the President and security to the residents thereof and provided with licensed firearms which
General Manager of the Illustrious Security and
Investigation Agency, Inc. despite the COMELEC denial they never brought outside the subdivision. Attached to his Counter-Affidavit
on February 19, 2001 of his/its application for a Firearms
was Memorandum 31-2000[9] of the Security Agencies and Guards
& Other Deadly Weapons Ban Exemption, in conspiring
with one another, did then and there, willfully and Supervision Division, Civil Security Group, PNP, which petitioner contended
unlawfully, allow, permit and/or sanction his/its
SECURITY GUARDS JACINTO CARAG AND JONRY only prohibited private security agencies, company security forces,
ENAYA, to work as such as they in fact unlawfully and
willfully did at the Santa Rosa Homes, Santa Rosa, Laguna, government security forces and their security guards from bearing guns
using 12 GA with Firearms License Nos.
0002946J0048708 and 0002946J00478992, knowing fully outside the immediate vicinity of their places of work without written
well that they had no prior written COMELEC authority to
do so under said Section 2, paragraph e and Section 3, authority from the COMELEC.
paragraph d COMELEC RESOLUTION 3328; that on
February 27, 2001, respondent-Security Guard JACINTO
CARAG, without any justifiable cause, with intent to kill, In a Resolution[10] dated October 8, 2001, the Provincial Election
taking advantage of nighttime, with treachery and use of
firearm, did then there, willfully, feloniously and Supervisor of Santa Cruz, Laguna, dismissed private respondents complaint
unlawfully shoot to death with a shotgun JONATHAN
MAGNO, a 19-year old unarmed and defenseless nautical against petitioner and his security guards based on a finding that the licensed
student in his school uniform that said respondent-Security
Guard CARAG immediately fled from the scene of the firearms were carried and used by security guards Enaya and Carag within
crime and is still at large, and that the fatal weapon though
recovered by the afore-named agency has not yet been their place of work, for which no exemption and/or permit was needed in
surrendered by said respondent RIMANDO to the police accordance with Section 2(e) of COMELEC Resolution No. 3328.
authorities, to the damage and prejudice of the heirs of
said victim represented by the undersigned mother.
xxx xxx xxx
Therefrom, private respondent Magno appealed [11] to the

COMELEC at Intramuros, Manila. Citing Section 3(d) of COMELEC

In his Counter-Affidavit,[8] petitioner denied having violated
Resolution No. 3328, she argued that prior written authority from the
COMELEC Resolution No. 3328 and averred that on the day of the shooting
COMELEC was necessary before firearms could legally be carried even in
incident, security guards Carag and Enaya were within the vicinity of Sta.
the place of assignment during the election period.
Rosa Homes in Santa Rosa, Laguna, where they were assigned to provide

On May 6, 2002, the COMELEC En Banc rendered a Resolution[12] affirming
the dismissal of the complaint against security guards Jonry Enaya and
Jacinto Carag, but directing its Law Department to file the proper information
against petitioner Juanito Rimando for violation of Article XXII, Section 261,
paragraph (s) of the Omnibus Election Code. In said Resolution, the
COMELEC En Banc, noting the seeming conflict between Section 2(e) and
Section 3(d) of COMELEC Resolution No. 3328, interpreted Section 261(s)
of the Omnibus Election Code as requiring a permit from the Commission
before the security guards of a security agency can bear firearms in their place
of assignment during the election gun ban. Moreover, the COMELEC found
that as President and General Manger of the security agency, it was
petitioners responsibility to apply for such a permit from the
COMELEC. Thus, the COMELEC ruled in its May 6, 2002 Resolution: [13]
As President and General Manager, respondent
Rimando is aware of this requirement as shown in the
records that he actually applied for an exemption from the
Committee on Firearms and Security Personnel of the
Commission. However, said application was denied on the
ground that it lacked the endorsement of the CSG Director
as evidenced by the recommendations made by the Law
Department. xxx xxx xxx
We therefore hold respondent Rimando liable for
violation of the COMELEC Gun Ban in his capacity as the
President and General Manager of the agency. His liability
falls squarely on his failure to secure a permit from the
Commission as provided under the supplementary
statement, Provided further, That in the last case prior
written approval of the Commission shall be
obtained. This supplemental provision explicitly reveals
the role of a security agency head in the procurement of
COMELEC permit delineating his responsibility over his
subordinates who only perform their duties as mandated of
them by the agency. It would be a mockery of justice if by
reason of respondent Rimandos failure to secure a permit
from the COMELEC all security guards employed in his
agency, inclusive of herein respondents Carag and Jacinto,
be charged with violation of the COMELEC Gun Ban.
This principle on the criminal liability of
managers of security agencies and their employees has
been laid down in Cuenca vs.
People of the Philippines (G.R. No. L-27586, June 26,
1970). In said case, the Supreme Court absolved the
security guard of the crime of illegalpossession of firearms
and instead ordered the prosecution of the security guards
agencys manager for his failure to acquire the necessary
permit for the firearms used by his agency. xxx xxx xxx
Petitioner filed a Motion for Reconsideration[14] contending that 1)
the aforesaid Resolution went beyond the scope of the law when it held
petitioner, as President of the security agency, criminally liable for an act that
was not prohibited under Section 261 (s) of the Omnibus Election Code; 2)
there was no conflict between Sections 2 and 3 of COMELEC Resolution No.
3382 and if ever there was, the same should be resolved in his favor since
penal laws were construed strictly against the State and in favor of the
accused; 3) the application for exemption filed by petitioners security agency
with the COMELEC through the PNP-SAGD was for the authority to
transport firearms and not to bear arms inside or within the vicinity of the

place of work of petitioners security personnel; and 4) since no election
offense was committed, the filing of a criminal case against petitioner was
unwarranted and contrary to law.
In its Resolution[15] dated January 30, 2004, the COMELEC En
Banc granted petitioners motion for reconsideration and accordingly reversed
and set aside its May 6, 2002 Resolution with the following ratiocination:
Section 261. Prohibited Acts. The
following shall be guilty of an election
offense:
xxx
(s) Wearing of uniforms and
bearing arms.- During the campaign
period, on the day before and on
election day, any member of x x x [a]
privately-owned or operated security,
investigative, protective or intelligence
agencies, who x x x bear arms outside the
immediate vicinity of his place of
work; Provided, That this prohibition
shall not apply x x x when guarding
private residences, buildings or
offices; Provided, further, that in the last
case prior written approval of the
Commission shall be obtained. Xxx
The aforequoted provision lays down the
following parameters for its application, to wit:
1. Bearing of firearms beyond the
immediate vicinity of ones place of
work is prohibited;
2. One may carry his firearm beyond
the immediate vicinity of his place
of work when he is guarding the
residence of private persons or
private residences or offices
provided he has prior written
authority from the Comelec.
The confusion in the interpretation of this proscription lies
in the peculiar circumstances under which security guards
perform their duties. There are security guards hired to
escort individuals. Since they are mobile, their place of
work cannot be determined with exactitude hence, the need
for an authority from the Comelec for them to carry their
firearms. There are also guards hired to secure the premises
of offices, or residences. And because these offices adjoin
other offices or that these residences adjoin other houses,
the actual place of work or its immediate vicinity cannot be
fixed with ease, there is also a need for these guards to
secure authority from the Comelec. Lastly, there are guards
assigned to secure all the houses in a subdivision, or all
offices in one compound, or all factories within a complex,
or all stores within a mall. In this case, the place of work of
the guards therein detailed can be easily determined by the
visible boundaries. And because the place of work can be
determined, the Gun Ban exemption is required only when
the firearms are brought outside said subdivision, or
compound, or complex, or mall.
The following provisions of Comelec Resolution
No. 3328 which is the Rules and regulations governing the
Bearing of Firearms during the election period for the May
2001 elections should likewise be noted:
Sec. 2. Prohibitions During the election
period from Jan. 2 to June 13, 2001, it
shall be unlawful for xxx
xxx
(e) Any members of
xxx privately owned
or operated security,
investigative,
 protective or carrying of firearm was done within the premises of the
intelligence agencies guards place of work. Under the law, the act is exempted
to bear firearms from the Gun Ban rule.
outside the immediate
vicinity of his place of Laws which are penal in nature, like Section 261 of the
work xxx Omnibus Election Code, should be interpreted liberally in
xxx favor of respondents. xxx While it is our duty to conduct
Sec. 3. Exceptions The provisions in preliminary investigation for election offenses and that this
Sec. 2 hereof shall not apply in the kind of investigation only requires substantial evidence, the
following instances: Commission must carry out this task prudently to the end
xxx that persons are not unnecessarily dragged into court
(d). Members of x x x hearings. Furthermore, we have already dismissed the case
privately owned or against the security guards. In the interest of justice, we
operated security, also have to dismiss the case against the head of their
investigative, security agency. [16]
protective or
intelligence agencies
in the specific area of
their assignment of Private respondent filed a motion for reconsideration[17] of the
their duties with prior
written authority from January 30, 2004 Resolution. In the herein first assailed Resolution[18] dated
the Commission.
October 11, 2005, the COMELEC En Banc rendered judgment, thus:
Interpreting the provisions aforequoted in relation
to this case, we arrive at the following important points: WHEREFORE, complainants Motion for
Reconsideration is hereby GRANTED, and the Resolution
1. One does not need authority from of the Commission promulgated on 30 January 2004 is
the Commission when the firearm is hereby RECONSIDERED.
carried within the immediate
vicinity of his place of work; The Law department is hereby directed to file the
2. If his place of work cannot be proper information against respondent Ret. Brig.
determined but he has an Gen. JUANITO RIMANDO for violation of Article
assignment to carry out in XXII, Section 261, paragraph (s) of the Omnibus Election
accordance with his duty, authority Code. The Law Department is further ORDERED to
from the Commission is required. ensure the effective prosecution thereof.

In the instant case, the shooting incident SO ORDERED.[19]

happened within the premises of Sta. Rosa Homes, a
subdivision being guarded by the security agency headed
by the respondent. It is very clear therefore that the
 In again changing its disposition of this case, the COMELEC En 4.3. He is guarding the
residence of private
Banc explained:[20] persons or guarding
private residences,
buildings or offices;
The focal issue involved in the instant case is whether or
Provided, that prior
not respondent Rimando violated the COMELEC Gun Ban
written approval of the
enforced during the 2001 election period.
Commission shall be
obtained.
To settle the issue once and for all, We deem it proper to
spell out the elements of the offense provided for in Section
The situation subject of this case falls within sub-paragraph
261 (s) of the Omnibus Election Code, to wit:
4.3. above.
(1) The offender is a member of security or police
Simply put, one way of committing the offense of violation
organization of government agencies, commissions,
of the gun ban is when the offender is in possession of a
councils, bureaus, offices or government-owned or
gun while guarding the residence of private persons, or
controlled corporations, or privately owned or operated
guarding private residences, buildings or offices, without
security, investigative, protective or intelligence agencies;
the necessary written approval or permission from the
Commission.
(2) He wears his uniform or uses his insignia, decorations
or regalia, or bear arms outside the immediate vicinity of
The above interpretation of the law is consistent with
his place of work;
Section 2, paragraph (e) and Section 3, paragraph (d) of
Resolution No. 3328. xxx
(3) That he committed the same during the campaign
period, on the day before election day, or on election day;
There is therefore no question that a violation of the gun
ban was indeed committed. The only remaining issue is
(4) The offender does not fall under any of these
whether or not respondent Rimando can be held liable
exceptions:
therefor.
4.1. He is in pursuit of
a person who has
There is no dispute that the security agency concerned, as
committed or is
represented by respondent Rimando, is required by law to
committing a crime in
secure the necessary permit from the Commission. In fact,
the premises he is
the records show that the said agency represented by
guarding;
respondent Rimando did in fact apply for exemption from
the gun ban, but the same was denied for failure to comply
4.2. He is escorting or
with all the requirements.
providing security for
the transport of
Can respondent Rimando be held criminally liable for such
payrolls, deposits or
failure to secure the necessary exemption from the gun
other valuables;
 ban? It is Our studied opinion that the answer is in the
affirmative.
In the case of Cuenca vs. People of the Philippines, G.R.
No. L-27586, June 26, 1970, the Supreme Court ruled that
Appellant security guard of the Bataan
Veterans Security Agency, which was
duly licensed to operate as such security
agency, cannot be held guilty of the
crime of illegal possession of firearm
and ammunitions owing to the failure of
the owner, manager and/or operator of
the said security agency to comply with
his duty to obtain such license before he
got said firearm and ammunitions and
delivered the same to his employee,
herein appellant.
xxx
The owner, manager and/or operator of
the security agency who failed to secure
the requisite license in the case at bar,
Jose Forbes, as the owner and operator
of the Bataan Veterans Security Agency
should be prosecuted for illegal
possession of firearms and/or such other
crime as may have been committed in
consequence of the breach of the laws
and regulations regarding the operation
of a security agency and use and issuance
of firearms and ammunitions.
Petitioner moved for reconsideration of the October 11, 2005 Resolution. In
[21]
its herein second impugned Resolution promulgated on January 5,
2007, the COMELEC En Banc emphasized that in light of the peculiar
circumstances surrounding the case, it was ruling pro hac vice i.e. its ruling
in the instant case should not be taken as a precedent for future cases of
similar nature, but only as a ruling with regard to the herein case and denied
petitioners Motion for Reconsideration, to wit:[22]
WHEREFORE, premises considered, the
Commission (en banc) RESOLVED, as it is
hereby RESOLVES, to DENY the instant Motion for
Reconsideration for LACK OF MERIT.
ACCORDINGLY, we uphold the October 11,
2005 en banc Resolution as our FINAL Resolution in the
instant case. The Law Department (this Commission) is
hereby DIRECTED to file the proper information against
Ret. Brig. Gen. JUANITO R. RIMANDO for violation of
Article XXII, Section 261 paragraph (s) of the Omnibus
Election Code and other pertinent election laws. The Law
Department (this Commission) is further ORDERED to
ensure the effective prosecution thereof.
SO ORDERED.[23]
Ascribing to public respondent COMELEC En Banc grave abuse of
discretion and/or ruling without or in excess of jurisdiction for rendering the
assailed Resolutions dated October 11, 2005 and January 5, 2007, petitioner
has come to us for relief on the following grounds:[24]
I
PUBLIC RESPONDENT ACTED WITH GRAVE
ABUSE OF DISCRETION AND/OR WITHOUT OR
 IN EXCESS OF JURISDICTION IN MAKING
CRIMINAL AN ACT OF BEARING ARMS WITHIN
THE IMMEDIATE VICINITY OF THE PLACE OF The petition is impressed with merit.
WORK WITHOUT COMELEC AUTHORITY,
EVEN WHEN IT IS CLEARLY NOT MADE SO
UNDER SECTION 261(s) OF THE OMNIBUS
ELECTION CODE. Public respondents interpretation of Section 261 (s) of the Omnibus

II Election Code to the effect that there was a violation of the election gun ban

in this case because of the absence of a permit from the COMELEC to carry
ASSUMING ARGUENDO THAT THE ACT
CONSTITUTE AN ELECTION OFFENSE, firearms within the place of work was without basis in law.
NEVERTHELESS, PUBLIC RESPONDENT ACTED
WITH GRAVE ABUSE OF DISCRETION AND/OR
WITHOUT OR IN EXCESS OF JURISDICTION IN
HOLDING PETITIONER CRIMINALLY LIABLE Section 261 (s) of the Omnibus Election Code reads:
FOR THE ACTS OF OTHER PERSONS, I.E., THE
SECURITY GUARDS WHO WERE THE ONES Section 261. Prohibited Acts. The
WHO PERSONALLY CARRIED THE FIREARMS, following shall be guilty of an election
JUST BECAUSE PETITIONER WAS THEN THE offense:
HEAD OF THE SECURITY AGENCY xxxx
CONCERNED, WHEN IT IS NOT CLEARLY (s) Wearing of uniforms and
MADE SO UNDER SECTION 261 (s) OF THE bearing arms.- During the campaign
OMNIBUS ELECTION CODE. period, on the day before and on
election day, any member of security or
III police organization of government
agencies, commissions, councils,
PUBLIC RESPONDENT ACTED WITH GRAVE bureaus, offices or government-owned
ABUSE OF DISCRETION AND/OR WITHOUT OR or controlled corporations or privately-
IN EXCESS OF JURISDICTION IN owned or operated security,
DISREGARDING THE TIME-HONORED investigative, protective or intelligence
DOCTRINE OF NULLUM CRIMEN, NULLA agencies, who wears his uniform or uses
POENA SINE LEGE. his insignia, decorations or regalia,
or bears arms outside the immediate
In its Comment,[25] private respondent averred that the resolutions vicinity of his place of work; Provided,
That this prohibition shall not apply
of the COMELEC En Banc, being the government office principally charged when said member is in pursuit of a
person who has committed or is
with the enforcement of the Omnibus Election Code, should be given full
committing a crime in the premises he is
faith and credit. guarding; or when escorting or providing
 security for the transport of payrolls,
deposits, or other valuables; or
when guarding the residence of
private persons or when guarding
private residences, buildings or
offices; Provided, further, that in the
last case prior written approval of the
Commission shall be obtained. The
Commission shall decide all applications
for authority under this paragraph within
fifteen days from the date of the filing of
such application. (Emphasis ours)
A perusal of Section 261 (s) in its entirety would show that, as a rule, the
bearing of arms by a member of security or police organization of a
government office or of a privately owned security agency outside the
immediate vicinity of ones place of work is prohibited. Implicitly, the bearing
of arms by such person within the immediate vicinity of his place of work is
not prohibited and does not require prior written approval from the
Commission. However, Section 261 (s) also lays down exceptions to this rule
and states that the general prohibition shall not apply in three instances: (a)
when any of the persons enumerated therein is in pursuit of another person
who has committed or is committing a crime in the premises the former is
guarding; (b) when such person is escorting or providing security for the
transport of payrolls, deposits, or other valuables; and (c) when he is guarding
private residences, buildings or offices. It is only in the case of the third
exception that it is provided that prior written approval from the COMELEC
shall be obtained.
In the case at bar, the cause of the confusion appears to be the fact that the
security guards who were being charged with violation of the election gun
ban were bearing firearms within the immediate vicinity of their place of
work, but their place of work happened to be a residential subdivision where
they were guarding the residences of private persons.
Indeed, this seeming conflict between the general rule (which allows the
bearing of arms within the immediate vicinity of the security personnels place
of work) and the exception (which states that prior written approval from the
COMELEC is necessary when security personnel are guarding private
residences or offices) can be harmonized if we interpret the exceptions as
pertaining to instances where the security personnel are outside the
immediate vicinity of their place of work or where the boundaries of their
place of work cannot be easily determined. Applying this interpretation to the
case at bar, prior written approval from the COMELEC is only required when
a member of a security agency is guarding private residences outside the
immediate vicinity of his place of work, or where the exact area of his
assignment is not readily determinable.
Verily, the correct interpretation of Section 261 (s) is found in the

January 30, 2004 Resolution of the COMELEC En Banc which held:[26]

[Section 261 (s) of the Omnibus Election Code]
lays down the following parameters for its application, to
wit:
1. Bearing of firearms beyond the
immediate vicinity of ones place of work
is prohibited;
2. One may carry his firearm beyond the
immediate vicinity of his place of work
when he is guarding the residence of
private persons or private residences or
offices provided he has prior written
authority from the Comelec.
The confusion in the interpretation of this proscription lies
in the peculiar circumstances under which security
guards perform their duties. There are security guards
hired to escort individuals. Since they are mobile, their
place of work cannot be determined with
exactitude hence, the need for an authority from the
Comelec for them to carry their firearms. There are also
guards hired to secure the premises of offices, or
residences. And because these offices adjoin other
offices or that these residences adjoin other houses, the
actual place of work or its immediate vicinity cannot be
fixed with ease, there is also a need for these guards to
secure authority from the Comelec. Lastly, there
are guards assigned to secure all the houses in a
subdivision, or all offices in one compound, or all
factories within a complex, or all stores within a
mall. In this case, the place of work of the guards
therein detailed can be easily determined by the visible
boundaries. And because the place of work can be
determined, the Gun Ban exemption is required only
when the firearms are brought outside said subdivision,
or compound, or complex, or mall. (Emphasis ours)
Indeed, the aforesaid interpretation would also harmonize Sections
2(e) and 3(d) of COMELEC Resolution No. 3328, which pertinently provide:
Sec. 2. Prohibitions During the election period from Jan.
2 to June 13, 2001, it shall be unlawful for:
xxxx
e) Any member of xxx privately owned
or operated security, investigative,
protective or intelligence agencies to
bear firearms outside the immediate
vicinity of his place of work; xxx
xxxx
Sec. 3. Exceptions The prohibitions in Section 2 hereof
shall not apply in the following instances:
xxxx
d). Members of xxx privately owned or
operated security, investigative,
protective or intelligence agencies in the
specific area of their assignment of their
duties with prior written authority from
the Commission.
The exemption also applies to these
personnel when:
xxx
3) Guarding private
residence, buildings or
offices with prior
written authority of
the Commission; xxx
x x x (Emphasis
supplied)
From the foregoing provisions of COMELEC Resolution No. 3328,
one of the prohibited acts is for a member of a privately owned or operated
security agency to bear firearms outside the immediate vicinity of his place
of work. Such prohibition shall not apply 1) when the member of the security
agency is in the actual performance of his duty in the specific area of his
assignment with prior written authority from the Commission, and 2) when
such member is guarding private residences, buildings or offices with prior
written authority from the Commission. However, these two instances
presuppose that the member of the security agency was undertaking his duties
in such a manner that the boundaries of his place of work cannot be
determined with exactitude.
This was the interpretation of COMELEC Resolution No. 3328
adopted in the same January 30, 2004 Resolution of the COMELEC En
Banc. To quote:[27]
1. One does not need authority from the
Commission when the firearm is carried within the
immediate vicinity of his place of work;
2. If his place of work cannot be determined but he
has an assignment to carry out in accordance with his duty,
authority from the Commission is required.
Here, it is undisputed that security guards Carag and Enaya were bearing
licensed firearms while performing their assigned task as guards inside the
subdivision, which was their place of work. That being the case, there was no
need to secure a written authority from the COMELEC under Section 261(s)
of the Omnibus Election Code. Hence, there was no violation at all of that
particular provision. We, thus, concur with petitioner that he did not commit
an election offense on February 27, 2001, the day the shooting incident
happened within the premises of Sta. Rosa Homes at Santa Rosa, Laguna.
To begin with, under Section 261(s) of the Omnibus Election Code,
the offender is, among others, a member of a privately owned or operated
security, investigative, protective or intelligence agency, who either (a)
wears his uniform or uses his insignia, decorations or regalia, or (b) bears
arms outside the immediate vicinity of his place of work during the
election period, except under certain circumstances or when authorized by
the COMELEC to do so. Ineluctably, such circumstances can only apply to
security guards Enaya and Carag but not to petitioner. Petitioner should not
be made responsible for the acts of another, more so, when the law does not
make him expressly so responsible. In United States v. Abad Santos,[28] it was
explicitly held that:
Courts will not hold one person criminally
responsible for the acts of another, committed without
his knowledge or consent, unless there is a statute
requiring it so plain in its terms that there is no doubt
of the intention of the Legislature. Criminal statutes are
to be strictly construed. No person should be brought
within their terms who is not clearly within them, nor
should any act be pronounced criminal which is not
clearly made so by the statute. (Emphasis ours)

We likewise held in People v. Deleverio that:[29]
It is a basic rule of statutory construction that
penal statutes are to be liberally construed in favor of
the accused. Courts must not bring cases within the
provision of a law which are not clearly embraced by it. No
act can be pronounced criminal which is not clearly made
so by statute; so, too, no person who is not clearly within
the terms of a statute can be brought within them. Any
reasonable doubt must be resolved in favor of the
accused. (Emphasis Ours)
It may not be amiss to point out that in order to buttress its ruling
regarding petitioners liability for failing to secure a permit, the
COMELEC En Banc, in its October 11, 2005 Resolution, found that
petitioner, as the representative of the security agency concerned, was aware
that an exemption from the COMELEC must necessarily be obtained. True,
petitioner applied for an exemption from the gun ban, but as revealed in
petitioners security agencys Letter attached to its Application for
Exemption,[30] the request for exemption involved the transport and
conveyance of licensed firearms and ammunitions, which were integral to the
conduct of the security agencys business and not for the bearing of arms
within the place of work of the security guards. Evidently, petitioner did not
see the need to apply for an exemption for his security guards, considering
that in a memorandum guideline issued by the Security Agencies and Guards
Division, PNP-SAGD, what was prohibited, among others, was to bear guns
outside the immediate vicinity of the place of work. Pertinently,
Memorandum 31-2000[31] states:
Guidelines ReCOMELEC GUN BAN During Election Period
(December 12, 2000)
1. References:
a. Provisions on Omnibus election code
b. COMELEC Resolution Nos. 3258 dated September 28,
2000 and 3328 dated November 20, 2000.
2. xxx The following circumstances are prohibited, unless with
written authority from COMELEC:
xxx
b. Detailed security personnel of PSAs//CSFs/GSFs and
their security guards/personnel are prohibited to bear
guns outside the immediate vicinity of their place of
work.
xxx
(Emphasis ours)
Even assuming for the sake of argument that Section 261(s) required
petitioners security agency to secure prior written approval from the
COMELEC for its security guards to bear arms in their place of work (which
was a residential subdivision), the failure of the President or General Manager
of the security agency to secure such approval is not itself defined as an
election offense. What is punished or prohibited under Section 261(s) is
merely the bearing of arms by a member of a security agency outside the of the Omnibus Election Code, but rather an added regulatory measure, the
immediate vicinity of his place of work without the approval of the
same is likewise not a penal provision. At most, it is an administrative
COMELEC as required under particular circumstances.
requirement to be complied with by the concerned persons.

To put it alternatively, the last proviso in Section 261(s) is not a penal

As aptly opined by Commissioner Romeo A. Brawner in his Dissent
provision. Said proviso reads:
to the assailed January 5, 2007 Resolution:[33]

xxx Provided further that in the last case, prior written
approval of the Commission shall be obtained.xxx
A penal law, as defined by this Court, is an act of the legislature that
prohibits certain acts and establishes penalties for its violation. It also defines
xxx The requirement to secure the Commission's
permit to secure exemption from the gun ban is in its
present formulation no more than an administrative
process described in the law. If this Commission believes
that it is necessary to criminalize the failure to secure its
approval, then representation should be made for such
purpose. (Emphasis ours)

crime, treats of its nature and provides for its punishment. [32] Here, the
Lastly, the COMELECs reliance on Cuenca v People[34] in its October 11,
abovequoted proviso does not prohibit certain acts or provide penalties for its
2005 Resolution to hold petitioner criminally liable is plainly
violation; neither does it describe the nature of a crime and its
misplaced. Commissioner Brawner in his Dissent properly
punishment. Consequently, the abovequoted phrase cannot be considered a
distinguished Cuenca from the present case and we quote:[35]
penal provision.
One. What is involved in the case of Cuenca was
a simple case of illegal possession of firearm totally
unrelated to election while the case at bench is a charge for
Moreover, even if we read Section 3(d) of COMELEC Resolution
violation of an election law.
No. 3328 as requiring members of private security agencies to secure prior
Two. The operative act constituting the offense found by
written authority from the COMELEC to bear arms even within the vicinity the Supreme Court was the omission of the security
agency headed by Jose Forbes to secure a license for the
of their places of work and we assume that the COMELEC may validly do so firearm he issued to his security Guard
Ernesto Cuenca. While in the present case, there is no
despite the fact that such authorization is not required under Section 261(s)
 dispute at all that the firearms issued by respondent
Rimando to his security guards were duly licensed.

Three. The accused in Cuenca was the security guard and Incidentally, private respondent also asserts that since the incident
not the security agency head while in this case, the
happened in a street inside a subdivision, a written authority from the
remaining respondent is the head of the security agency.
COMELEC should have nonetheless been obtained under R.A. 7166, Section
Four. The issue in Cuenca was whether the security guard
was in possession of a licensed firearm or not while the 32 which in effect modified Section 261 of the Omnibus Election Code.
issue in this case is whether the head of the agency who
failed to secure a permit for exemption from the
Commission is guilty of an election offense or not. Suffice it to say that Section 261(s) was not the one modified by Section 32
of R.A. No. 7166, but Section 261(q). As noted in Los Banos v. Pedro:[37]

It may likewise be noted that mere possession of unlicensed firearms SEC. 261. Prohibited Acts. The following shall be guilty
of an election offense:
is already punishable by statute as a crime. Hence, the owner, manager or xxxx
(q) Carrying firearms outside residence
operator of the security agency that obtains unlicensed firearms and issues or place of business. Any person who,
although possessing a permit to carry
the same to security guards in its employ is undeniably criminally liable. firearms, carries any firearms outside his
Moreover, the law on illegal possession of firearms has been amended to residence or place of business during the
election period, unless authorized in
specifically penalize the owner, president, manager, director, or other writing by the Commission [on
Elections]: Provided, That a motor
responsible officer of any public or private firm or entity who knowingly vehicle, water or air craft shall not be
considered residence or place of
allows the use of unlicensed firearms by his personnel.[36] business or extension thereof.
This prohibition shall not apply to
cashiers and disbursing officers while in
the performance of their duties or to
To reiterate, under Section 261 (s) of the Omnibus Election Code,
persons who by nature of their official
the punishable act is the bearing of arms outside the immediate vicinity of duties, profession, business or
occupation habitually carry large sums
ones place of work during the election period and not the failure of the head of money or valuables.
This section was subsequently amended under Republic
or responsible officer of the security agency to obtain prior written Act (R.A.) No. 7166, the Synchronized Election Law of
1991, to read:
COMELEC approval.
 SEC. 32. Who May Bear Firearms. During the election
period, no person shall bear, carry or transport firearms or SO ORDERED.
other deadly weapons in public places, including any
building, street, park, private vehicle or public conveyance,
even if licensed to possess or carry the same, unless
authorized in writing by the Commission. The issuance of TERESITA J. LEONARDO-DE CASTRO
firearm licenses shall be suspended during the election Associate Justice
period

WE CONCUR:
In any event, there is likewise nothing in R.A. 7166 that expressly

penalizes the mere failure to secure written authority from the COMELEC as
REYNATO S. PUNO
required in Section 32 thereof. Such failure to secure an authorization must Chief Justice
still be accompanied by other operative acts, such as the bearing, carrying or

transporting of firearms in public places during the election period. (On official leave)
LEONARDO A. QUISUMBING CONSUELO YNARES-
Associate Justice SANTIAGO
Associate Justice
All told, petitioner should be absolved of any criminal liability,
(On official leave)
consistent with the doctrine of nullum crimen, nulla poena sine lege - there ANTONIO T. CARPIO
Associate Justice RENATO C. CORONA
is no crime when there is no law punishing it.[38] Associate Justice

Thus, the Court finds that respondent COMELEC acted with grave

abuse of discretion in issuing the questioned Resolutions.

CONCHITA CARPIO
MORALES MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
WHEREFORE, The Resolutions of the COMELEC En

Banc issued on October 11, 2005 and January 5, 2007 in Election Case No.

01-130 are hereby REVERSED and SET ASIDE.

 PRESBITERO J. VELASCO, ANTONIO EDUARDO B. EN BANC
JR. NACHURA
Associate Justice Associate Justice

[G.R. No. 128096. January 20, 1999]

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice
PANFILO M. LACSON, petitioner vs. THE EXECUTIVE
SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE
SPECIAL PROSECUTOR, THE DEPARTMENT OF
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO JUSTICE, MYRNA ABALORA, NENITA ALAP-AP,
Associate Justice Associate Justice IMELDA PANCHO MONTERO, and THE PEOPLE OF THE
PHILIPPINES, respondents.
ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-
ROBERTO A. ABAD intervenors.
Associate Justice
DECISION
MARTINEZ, J.:

The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an

CERTIFICATION act which further defines the jurisdiction of the Sandiganbayan is being
challenged in this petition for prohibition and mandamus. Petitioner Panfilo
Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia,
Pursuant to Section 13, Article VIII of the Constitution, I certify that the Jr., also seeks to prevent the Sandiganbayan from proceeding with the trial
conclusions in the above decision had been reached in consultation before the of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on
case was assigned to the writer of the opinion of the Court. the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the parties pleadings and
REYNATO S. PUNO documentary proofs, are as follows:
Chief Justice In the early morning of May 18, 1995, eleven (11) persons believed to
be members of the Kuratong Baleleng gang, reportedly an organized crime
syndicate which had been involve in a spate of bank robberies in Metro
Manila, were slain along Commonwealth Avenue in Quezon City by
elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG)
headed by Chief Superintendent Jewel Canson of the Philippine National
Police (PNP). The ABRITG was composed of police officers from the Traffic
Management Command (TMC) led by petitioner-intervenor Senior
Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission
Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent
Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief
Superintendent Ricardo de Leon; and the Criminal Investigation Command
(CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of
the CIC, that what actually transpired at dawn of May 18, 1995 was a
summary execution (or a rub out) and not a shoot-out between the Kuratong
Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for
Military Affairs, Bienvenido Blancaflor, to investigate the incident. This
panel later absolve from any criminal liability all the PNP officers and
personnel allegedly involved in the May 18, 1995 incident, with a finding that
the said incident was a legitimate police operation.[1]
However, a review board led by Overall Deputy Ombudsman Francisco
Villa modified the Blancaflor panels finding and recommended the
indictment for multiple murder against twenty-six (26) respondents,
including herein petitioner and intervenors. This recommendation was
approved by the Ombudsman, except for the withdrawal of the charges
against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those
charged as principal in eleven (11) informations for murder [2] before
the Sandiganbayans Second Division, while intervenors Romeo Acop and
Francisco Zubia, Jr. were among those charged in the same informations as
accessories after-the-fact.
Upon motion by all the accused in the 11
informations,[3] the Sandiganbayan allowed them to file a motion for
reconsideration of the Ombudsmans action.[4]
After conducting a reinvestigation, the Ombudsman filed on March 1,
1996 eleven (11) amended informations[5] before the Sandiganbayan,
wherein petitioner was charged only as an accessory, together with Romeo
Acop and Francisco Zubia, Jr. and others. One of the accused[6] was dropped
from the case.
On March 5-6, 1996, all the accused filed separate motions questioning
the jurisdiction of the Sandiganbayan, asserting that under the amended
informations, the cases fall within the jurisdiction of the Regional Trial Court
pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975.[7] They
contend that the said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused are government officials
with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief
Superintendent (Brigadier General) or higher. The highest
ranking principal accused in the amended informations has the rank of only
a Chief Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution[8] dated May 8, 1996 (promulgated on May
9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon
concurring, and Justices Balajadia and Garchitorena
dissenting,[9] the Sandiganbayan admitted the amended information and
ordered the cases transferred to the Quezon City Regional Trial Court which
has original and exclusive jurisdiction under R.A. 7975, as none of the
principal accused has the rank of Chief Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a
reconsideration, insisting that the cases should remain with
the Sandiganbayan. This was opposed by petitioner and some of the accused.
While these motions for reconsideration were pending resolution, and
even before the issue of jurisdiction cropped up with the filing of the amended
informations on March 1, 1996, House Bill No. 2299 [10] and No.
1094[11] (sponsored by Representatives Edcel C. Lagman and Neptali M.
Gonzales II, respectively), as well as Senate Bill No. 844 [12] (sponsored by
Senator Neptali Gonzales), were introduced in Congress, defining/expanding
the jurisdiction of the Sandiganbayan. Specifically, the said bills sought,
among others, to amend the jurisdiction of the Sandiganbayan by deleting the
word principal from the phrase principal accused in Section 2 (paragraphs a
and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No.
8249[13]. The law is entitled, AN ACT FURTHER DEFINING THE
JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED,
PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES. It
took effect on February 25, 1997.13 by the President of the Philippines on
February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a
Resolution[14] denying the motion for reconsideration of the Special
Prosecutor, ruling that it stands pat in its resolution dated May 8, 1996.
 On the same day,[15] the Sandiganbayan issued an ADDENDUM to its
March 5, 1997 Resolution, the pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou
concurred in it, but before Justice de Leon, Jr. rendered his concurring and
dissenting opinion, the legislature enacted Republic Act 8249 and the
President of the Philippines approved it on February 5, 1997. Considering
the pertinent provisions of the new law, Justices Lagman and
Demetriou are now in favor of granting, as they are now granting, the
Special Prosecutors motion for reconsideration. Justice de Leon has
already done so in his concurring and dissenting opinion.
xxxxxxxxx
Considering that three of the accused in each of these cases are PNP
Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and
Panfilo M. Lacson, and that trial has not yet begun in all these cases in
fact, no order of arrest has been issued this court has competence to take
cognizance of these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 to
2, the court admitted the Amended Informations in these cases and by
the unanimous vote of 4 with 1 neither concurring nor dissenting,
retained jurisdiction to try and decide the cases.[16] [Emphasis supplied]
Petitioner now questions the constitutionality of Section 4 R.A. No.
8249, including Section 7 thereof which provides that the said law shall apply
to all cases pending in any court over which trial has not begun as of the
approval hereof. Petitioner argues that:
a) The questioned provision of the statute were introduced by the authors
thereof in bad faith as it was made to precisely suit the situation in which
petitioners cases were in at the Sandiganbayan by restoring jurisdiction
thereover to it, thereby violating his right to procedural due process and the
equal protection clause of the Constitution. Further, from the way
the Sandiganbayan has foot-dragged for nine (9) months the resolution of a
pending incident involving the transfer of the cases to the Regional Trial
Court, the passage of the law may have been timed to overtake such
resolution to render the issue therein moot, and frustrate the exercise of
petitioners vested rights under the old Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plain from the fact that it was again
made to suit the peculiar circumstances in which petitioners cases were
under, namely, that trial had not yet commenced, as provided in Section 7,
to make certain that those cases will no longer be remanded to the Quezon
City Regional Trial Court, as the Sandiganbayan alone should try them,
thus making it an ex post facto legislation and a denial of the right of
petitioner as an accused in Criminal Case Nos. 23047 23057 to procedural
due process
c) The title of the law is misleading in that it contains the aforesaid
innocuous provisions in Sections 4 and 7 which actually expands rather than
defines the old Sandiganbayan law (RA 7975), thereby violating the one-
title-one-subject requirement for the passage of statutes under Section
26(1), Article VI of the Constitution.[17]
For their part, the intervenors, in their petition-in-intervention, add that
while Republic Act No. 8249 innocuously appears to have merely expanded
the jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in
said statute impressed upon it the character of a class legislation and an ex-
post facto statute intended to apply specifically to the accused in
the Kuratong Baleleng case pending before the Sandiganbayan.[18] They
further argued that if their case is tried before the Sandiganbayan their right
to procedural due process would be violated as they could no longer avail of
the two-tiered appeal to the Sandiganbayan, which they acquired under R.A.
7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor General filed
separate pleadings in support of the constitutionality of the challenged
provisions of the law in question and praying that both the petition and the
petition-in-intervention be dismissed.
This Court then issued a Resolution[19] requiring the parties to file
simultaneously within a nonextendible period of ten (10) days from notice
thereof additional memoranda on the question of whether the subject
amended informations filed in Criminal Cases Nos. 23047-23057 sufficiently
alleged the commission by the accused therein of the crime charged within
the meaning Section 4 b of Republic Act No. 8249, so as to bring the said
cases within the exclusive original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the
People of the Philippines, filed the required supplemental
memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption
of constitutionality, and to justify its nullification there must be a clear and
unequivocal breach of the Constitution, not a doubtful and argumentative
one.[20] The burden of proving the invalidity of the law lies with those who
challenge it. That burden, we regret to say, was not convincingly discharged
in the present case.
The creation of the Sandiganbayan was mandated in Section 5, Article
XIII of the 1973 Constitution, which provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known
as Sandiganbayan, which shall have jurisdiction over criminal and civil
cases involving graft and corrupt practices and such other offenses
committed by public officers and employees including those in government-
owned or controlled corporations, in relation to their office as may be
determined by law."
The said special court is retained in the new (1987) Constitution under
the following provision in Article XI, Section 4:
Section 4. The present anti-graft court known as the Sandiganbayan shall
continue to function and exercise its jurisdiction as now or hereafter may be
provided by law.
Pursuant to the constitutional mandate, Presidential Decree No.
1486[21] created the Sandiganbayan. Thereafter, the following laws on
the Sandiganbayan, in chronological order, were enacted: P.D. No.
1606,[22] Section 20 of Batas Pambansa Blg. 129,[23] P.D. No. 1860,[24] P.D.
No. 1861,[25] R.A. No. 7975,[26] and R.A. No. 8249.[27] Under the latest
amendments introduced by Section 4 of R.A. No. 8249,
the Sandiganbayan has jurisdiction over the following cases:
SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby
further amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine Army and air force colonels, naval captains, and all officers
of higher rank;
(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior superintendent or
higher;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof classified as Grade 27 and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the Judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade 27 or higher
under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
Subsection a of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding
to salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or
military and PNP officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgment, resolution or orders of the regional trial courts whether in the
exercise of their own original jurisdiction of their appellate jurisdiction as
herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over
petitions of the issuance of the writs of mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other ancillary writs and processes in aid of
its appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided,
That the jurisdiction over these petitions shall not be exclusive of the
Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may
hereafter promulgate, relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review filed with
the Sandiganbayan. In all cases elevated to the Sandiganbayan and from
the Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the People of the Philippines,
except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed
in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them.
x x x x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 8249 states:
SEC. 7. Transitory provision. This act shall apply to all cases pending
in any court over which trial has not begun as of the approval
hereof. (Emphasis supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2
of R.A. 7975 provides:
SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as
amended] is hereby further amended to read as follows:
SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the principal accused are officials occupying the
following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine Army and air force colonels, naval captains, and all officers
of high rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and Provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof classified as Grade 27 and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade 27 or higher
under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and
employees mentioned in Subsection a of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are occupying positions
corresponding to salary Grade 27 or higher, as prescribed in the said
Republic Act 6758, or PNP officers occupying the rank of
superintendent or higher, or their equivalent, exclusive jurisdiction
thereof shall be vested in the proper regional trial court, metropolitan
trial court, municipal trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on
appeals from the final judgments, resolutions or orders of regular courts
where all the accused are occupying positions lower than grade 27, or not
otherwise covered by the preceding enumeration.
xxxxxxxxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed
in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall
have exclusive jurisdiction over them.
x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 7975 reads:
SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has
not begun in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the
word principal before the word accused appearing in the above-quoted
Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this
deletion of the word principal that the parties herein are at loggerheads over
the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on
R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has
jurisdiction over the Subject criminal cases since none of
the principal accused under the amended information has the rank of
Superintendent[28] or higher. On the other hand, the Office of the
Ombudsman, through the Special Prosecutor who is tasked to represent the
People before the Supreme Court except in certain cases, [29] contends that
the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall
under the exclusive original jurisdiction of the Sandiganbayan, the following
requisites must concur: (1) the offense committed is a violation of (a) R.A.
3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code (the law on bribery),[30] (d) Executive Order Nos. 1,
2, 14, and 14-A, issued in 1986 (sequestration cases),[31] or (e) other offenses
or felonies whether simple or complexed with other crimes; (2) the offender
committing the offenses in items (a), (b), (c) and (e) is a public official or
employee[32] holding any of the positions enumerated in paragraph a of
Section 4; and (3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged
with murder which is a felony punishable under Title VIII of the Revised
Penal Code, the governing provision on the jurisdictional offense
is not paragraph but paragraph b, Section 4 of R.A. 8249. This paragraph b
pertains to other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees mentioned in
subsection a of [Section 4, R.A. 8249] in relation to their office. The phrase
other offenses or felonies is too broad as to include the crime of murder,
provided it was committed in relation to the accuseds official functions. Thus,
under said paragraph b, what determines the Sandiganbayans jurisdiction is
the official position or rank of the offender that is, whether he is one of those
public officers or employees enumerated in paragraph a of Section 4. The
offenses mentioned in paragraphs a, b and c of the same Section 4 do not
make any reference to the criminal participation of the accused public officer
as to whether he is charged as a principal, accomplice or accessory. In
enacting R.A. 8249, the Congress simply restored the original provisions of
P.D. 1606 which does not mention the criminal participation of the public
officer as a requisite to determine the jurisdiction of the Sandiganbayan.
Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249
violate their right to equal protection of the law[33] because its enactment was
particularly directed only to the Kuratong Baleleng cases in
the Sandiganbayan, is a contention too shallow to deserve merit. No concrete
evidence and convincing argument were presented to warrant a declaration
of an act of the entire Congress and signed into law by the highest officer of
the co-equal executive department as unconstitutional. Every classification
made by law is presumed reasonable. Thus, the party who challenges the law
must present proof of arbitrariness.[34]
It is an established precept in constitutional law that the guaranty of the
equal protection of the laws is not violated by a legislation based on
reasonable classification. The classification is reasonable and not arbitrary
when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class,[35]
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the
presumption of constitutionality and reasonableness of the questioned
provisions. The classification between those pending cases involving the
concerned public officials whose trial has not yet commenced and whose
cases could have been affected by the amendments of
the Sandiganbayan jurisdiction under R.A. 8249, as against those cases
where trial had already started as of the approval of the law, rests on
substantial distinction that makes real differences.[36] In the first instance,
evidence against them were not yet presented, whereas in the latter the parties
had already submitted their respective proofs, examined witness and
presented documents. Since it is within the power of Congress to define the
jurisdiction of courts subject to the constitutional limitations, [37] it can be
reasonably anticipated that an alteration of that jurisdiction would necessarily
affect pending cases, which is why it has to provide for a remedy in the form
of a transitory provision. Thus, petitioner and intervenors cannot now claim
that Sections 4 and 7 placed them under a different category from those
similarly situated as them. Precisely, paragraph a of Section 4 provides that
it shall apply to all cases involving" certain public officials and, under the
transitory provision in Section 7, to all cases pending in any court. Contrary
to petitioner and intervenors arguments, the law is not particularly directed
only to the Kuratong Baleleng cases. The transitory provision does not only
cover cases which are in the Sandiganbayan but also in any court. It just
happened that the Kuratong Baleleng cases are one of those affected by the
law. Moreover, those cases where trial had already begun are not affected by
the transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is
premised on what is perceived as bad faith on the part of a Senator and two
Justices of the Sandiganbayan[38] for their participation in the passage of the
said provisions. In particular, it is stressed that the Senator had expressed
strong sentiments against those officials involved in the Kuratong
Baleleng cases during the hearings conducted on the matter by the committee
headed by the Senator. Petitioner further contends that the legislature is
biased against him as he claims to have been selected from among the 67
million other Filipinos as the object of the deletion of the word principal in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory
provision of R.A. 8249.[39] R.A. 8249, while still a bill, was acted,
deliberated, considered by 23 other Senators and by about 250
Representatives, and was separately approved by the Senate and House of
Representatives and, finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had
against petitioner during the committee hearings, the same would not
constitute sufficient justification to nullify an otherwise valid law. Their
presence and participation in the legislative hearings was deemed necessary
by Congress since the matter before the committee involves the graft court of
which one is the head of the Sandiganbayan and the other a member
thereof. The Congress, in its plenary legislative powers, is particularly
empowered by the Constitution to invite persons to appear before it whenever
it decides to conduct inquiries in aid of legislation.[40]
Petitioner and intervenors further argued that the retroactive application
of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post
facto law[41] for they are deprived of their right to procedural due process as
they can no longer avail of the two tiered appeal which they had allegedly
acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in
R.A. 8249. In Calder v. Bull,[42] an ex post facto law is one
(a)which makes an act done criminal before the passing of the law
and which was innocent when committed, and punishes such
action; or
(b) which aggravates a crime or makes it greater that when it was
committed; or
(c) which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed,
(d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the
commission of the offense in order to convict the defendant.[43]
(e) Every law which, in relation to the offense or its consequences,
alters the situation of a person to his disadvantage.[44]
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only
but in effect imposes a penalty or deprivation of a right which
when done was lawful;
(g) deprives a person accused of crime of some lawful protection
to which he has become entitled, such as the protection of a
former conviction or acquittal, or a proclamation of
amnesty.[45]
Ex post facto law, generally, prohibits retrospectivity of penal
laws.[46] R.A. 8249 is not a penal law. It is a substantive law on jurisdiction
which is not penal in character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their violations; [47] or
those that define crimes, treat of their nature, and provide for their
punishment.[48] R.A. 7975, which amended P.D. 1606 as regards
the Sandiganbayans jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a
procedural statute, i.e. one which prescribes rules of procedure by which
courts applying laws of all kinds can properly administer justice. [49] Not being
a penal law, the retroactive application of R.A. 8249 cannot be challenged as
unconstitutional.
Petitioners and intervenors contention that their right to a two-tiered
appeal which they acquired under R.A. 7975 has been diluted by the
enactment of R.A. 8249, is incorrect. The same contention has already been
rejected by the court several times[50] considering that the right to appeal
is not a natural right but statutory in nature that can be regulated by
law. The mode of procedure provided for in the statutory right of appeal is
not included in the prohibition against ex post facto laws.[51] R.A. 8249
pertains only to matters of procedure, and being merely an amendatory statute
it does not partake the nature of an ex post facto law. It does not mete out a
penalty and, therefore, does not come within the prohibition. [52] Moreover,
the law did not alter the rules of evidence or the mode of trial. [53] It has been
ruled that adjective statutes may be made applicable to actions pending and
unresolved at the time of their passage.[54]
In any case, R.A. 8249 has preserved the accuseds right to appeal to the
Supreme Court to review questions of law.[55] On the removal of the
intermediate review facts, the Supreme Court still has the power of review to
determine if the presumption of innocence has been convincingly
overcome.[56]
Another point. The challenged law does not violate the one-title-one-
subject provisions of the Constitution. Much emphasis is placed on the
wording in the title of the law that it defines the Sandiganbayan jurisdiction
when what it allegedly does is to expand its jurisdiction. The expansion in the
jurisdiction of the Sandiganbayan, if it can be considered as such, does not
have to be expressly stated in the title of the law because such is the necessary
consequence of the amendments. The requirement that every bill must only
have one subject expressed in the title[57] is satisfied if the title is
comprehensive enough, as in this case, to include subjects related to the
general purpose which the statute seeks to achieve.[58] Such rule is severally
interpreted and should be given a practical rather than a technical
construction. There is here sufficient compliance with such requirement,
since the title of R.A. 8249 expresses the general subject (involving the
jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as
amended) and all the provisions of the law are germane to that general
subject.[59] The Congress, in employing the word define in the title of the law,
acted within its powers since Section 2, Article VIII of the Constitution itself
empowers the legislative body to define, prescribe, and apportion the
jurisdiction of various courts.[60]
There being no unconstitutional infirmity in both the subject
amendatory provision of Section 4 and the retroactive procedural application
of the law as provided in Section 7 R.A. No. 8249, we shall now determine
whether under the allegations in the Informations, it is
the Sandiganbayan or Regional Trial Court which has jurisdiction over the
multiple murder case against herein petitioner and intervenors.
The jurisdiction of a court is defined by the Constitution or statute. The
elements of that definition must appear in the complaint or information so as
to ascertain which court has jurisdiction over a case. Hence the elementary
rule that the jurisdiction of a court is determined by the allegations in the
complaint or information,[61] and not by the evidence presented by the parties
at the trial.[62]
As stated earlier, the multiple murder charge against petitioner and
intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4
requires that the offense charged must be committed by the offender in
relation to his office in order for the Sandiganbayan to have jurisdiction over
it.[63] This jurisdictional requirement is in accordance with Section 5, Article
XIII of the 1973 Constitution which mandated that the Sandiganbayan shall
have jurisdiction over criminal cases committed by public officers and
employees, including those in government-owned or controlled
corporations, in relation to their office as may be determined by law. This
constitutional mandate was reiterated in the new (1987) Constitution when it
declared in Section 4 thereof that the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided
by law.
The remaining question to be resolved then is whether the offense of
multiple murder was committed in relation to the office of the accused PNP
officers.
In People vs. Montejo,[64] we held that an offense is said to have been
committed in relation to the office if it (the offense) is intimately connected
with the office of the offender and perpetrated while he was in the
performance of his official functions.[65] This intimate relation between the
offense charged and the discharge of official duties must be alleged in the
Information.[66]
As to how the offense charged be stated in the information, Section 9,
Rule 110 of the Revised Rules of Court mandates:
SEC. 9. Cause of Accusation. The acts or omissions complained of as
constituting the offense must be stated in ordinary and concise
language without repetition not necessarily in the terms of the statute
defining the offense, but in such form as is sufficient to enable a person of
common understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. (Emphasis supplied)
As early as 1954, we pronounced that the factor that characterizes the
charge is the actual recital of the facts.[67] The real nature of the criminal
charges is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the actual recital of facts in
the complaint or information.[68]
The noble object of written accusations cannot be overemphasized. This
was explained in U.S. v. Karelsen:[69]
The object of this written accusations was First, To furnish the
accused with such a description of the charge against him as will
enable him to make his defense, and second, to avail himself of his
conviction or acquittal for protection against a further prosecution for
the same cause, and third, to inform the court of the facts alleged so
that it may decide whether they are sufficient in law to support a
conviction if one should be had. In order that this requirement may
be satisfied, facts must be stated, not conclusions of law Every
crime is made up of certain acts and intent these must be set forth
in the complaint with reasonable
particularity of time, place, names (plaintiff and defendant) and
circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance
necessary to constitute the crime charged. (Emphasis supplied)
It is essential, therefore, that the accused be informed of the facts that
are imputed to him as he is presumed to have no independent knowledge
of the facts that constitute the offense.[70]
Applying these legal principles and doctrines to the present case, we
find the amended informations for murder against herein petitioner and
intervenors wanting of specific factual averments to show the intimate
relation/connection between the offense charged and the discharge of
official function of the offenders.
In the present case, one of the eleven (11) amended informations [71] for
murder reads:
AMENDED INFORMATION
The undersigned Special Prosecution Officer III, Office of the Ombudsman
hereby accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP
ERWIN T. VILLACORTE SENIOR INSP JOSELITO T.
ESQUIVEL. INSP RICARDO G. DANDAN SPO4 VICENTE P.
ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V.
PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C.
CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B.
CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M.
ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF
INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES,
SENIOR INISP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3
CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2 LEONARDO
GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime
of Murder as defined and penalized under Article 248 of the Revised
Penal Code committed as follows:
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon
City, Philippines and within the jurisdiction of this Honorable Court, the
accused CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN
T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP.
RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO SPO4
ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO all taking
advantage of their public and official positions as officers and members
of the Philippine National Police and committing the acts herein alleged
in relation to their public office, conspiring with intent to kill and using
firearms with treachery, evident premeditation and taking advantage of their
superior strengths did then and there willfully, unlawfully and
feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal
wounds which caused his instantaneous death to the damage and prejudice
of the heirs of the said victim.
That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO
M. ACOP CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA, JR. SUPT. ALMARIO A. HILARIO, CHIEF
INSP. CESAR O. MANCAO II CHIEF INSP. GIL L. MENESES, SENIOR
INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN,
INSP. CEASAR TANNAGAN SPO3 WILLY NUAS SPO3 CICERO S.
BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in
relation to office as officers and members of the Philippine National Police
are charged herein as accessories after-the-fact for concealing the crime
herein above alleged by among others falsely representing that there
were no arrests made during the raid conducted by the accused herein
at Superville Subdivision, Paraaque, Metro Manila on or about the early
dawn of May 18, 1995.
CONTRARY TO LAW
While the above-quoted information states that the above-named
principal accused committed the crime of murder in relation to their public
office, there is, however, no specific allegation of facts that the shooting of
the victim by the said principal accused was intimately related to the
discharge of their official duties as police officers. Likewise, the amended
information does not indicate that the said accused arrested and investigated
the victim and then killed the latter while in their custody.
Even the allegations concerning the criminal participation of herein
petitioner and intervenors as among the accessories after-the-fact, the
amended information is vague on this. It is alleged therein that the said
accessories concealed the crime herein-above alleged by, among others,
falsely representing that there were no arrests made during the raid conducted
by the accused herein at Superville Subdivision, Paraaque, Metro Manila, on
or about the early dawn of May 18, 1995. The sudden mention of
the arrests made during the raid conducted by the accused surprises the
reader.There is no indication in the amended information that the victim
was one of those arrested by the accused during the raid. Worse, the raid
and arrests were allegedly conducted at Superville Subdivision, Paraaque,
Metro Manila but, as alleged in the immediately preceding paragraph of the
amended information, the shooting of the victim by the principal accused
occurred in Mariano Marcos Avenue, Quezon City. How the raid, arrests and
shooting happened in two places far away from each other is puzzling. Again,
while there is the allegation in the amended information that the said
accessories committed the offense in relation to office as officers and
members of the (PNP), we, however, do not see the intimate connection
between the offense charged and the accuseds official functions, which, as
earlier discussed, is an essential element in determining the jurisdiction of
the Sandiganbayan.
The stringent requirement that the charge be set forth with such
particularity as will reasonably indicate the exact offense which the accused
is alleged to have committed in relation to his office was, sad to say, not
satisfied. We believe that the mere allegation in the amended information that
the offense was committed by the accused public officer in relation to his
office is not sufficient. That phrase is merely a conclusion of law, not
a factual averment that would show the close intimacy between the offense
charged and the discharge of the accuseds official duties.
In People vs. Magallanes,[72] where the jurisdiction between the
Regional Trial Court and the Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in
the complaint or information and not by the result of evidence after trial.
In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended
information alleged
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups
of police patrol and civilian commandos consisting of regular policemen
and x x x special policemen, appointed and provided by him with pistols
and high power guns and then established a camp x x x at Tipo-tipo which
is under his command x x x supervision and control where his co-
defendants were stationed, entertained criminal complaints and conducted
the corresponding investigations, as well as assumed the authority to arrest
and detain persons without due process of law and without bringing them to
the proper court, and that in line with this set-up established by said Mayor
of Basilan City as such, and acting upon his orders his co-defendants
arrested and maltreated Awalin Tebag who died in consequence thereof.
we held that the offense charged was committed in relation to the office of
the accused because it was perpetrated while they were in the performance,
though improper or irregular of their official functions and would not have
been committed had they not held their office, besides, the accused had no
personal motive in committing the crime, thus, there was an intimate
connection between the offense and the office of the accused.
the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed
to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the
Regional Trial Court of Quezon City which has exclusive original jurisdiction
over said cases.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-
Reyes, JJ., concur.
THIRD DIVISION

Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and ORLANDO L. SALVADOR, for and in behalf of the Presidential G.R. No. 135080
15563 in the court below do not indicate that the accused arrested and Ad Hoc Fact-Finding Committee on Behest Loans,
investigated the victims and then killed the latter in the course of the Petitioner,
investigation. The informations merely allege that the accused, for the
purpose of extracting or extorting the sum of P353,000.00 abducted, - versus -
kidnapped and detained the two victims, and failing in their common
purpose, they shot and killed the said victims. For the purpose of PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA, Present:
determining jurisdiction, it is these allegations that shall control, and CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO TANEDO,
not the evidence presented by the prosecution at the trial. YNARES-SANTIAGO,
J.V. DE OCAMPO, ALICIA L. REYES, BIENVENIDO R. TANTOCO,
JR., BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES, Acting C.J., Chairperson,
In the aforecited case of People vs. Montejo, it is noteworthy that the ERNESTO M. CARINGAL, ROMEO V. JACINTO, and MANUEL D. AUSTRIA-MARTINEZ,
phrase committed in relation to public office does not appear in the CHICO-NAZARIO,
TANGLAO,
information, which only signifies that the said phrase is not what determines
Respondents. NACHURA, and
the jurisdiction of the Sandiganbayan. What is controlling is the specific
REYES, JJ.
factual allegations in the information that would indicate the close intimacy
between the discharge of the accuseds official duties and the commission of
the offense charged, in order to qualify the crime as having been committed Promulgated:
in relation to public office.
November 28, 2007
Consequently, for failure to show in the amended informations that the x------------------------------------------------------------------------------------x
charge of murder was intimately connected with the discharge of official
functions of the accused PNP officers, the offense charged in the subject
criminal cases is plain murder and, therefore, within the exclusive original DECISION
jurisdiction of the Regional Trial Court,[73] not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 NACHURA, J.:
is hereby sustained. The Addendum to the March 5, 1997 Resolution of
 the disadvantage and detriment of the Philippines
government and the Filipino people;

ACCORDINGLY, an Ad-Hoc FACT FINDING

COMMITTEE ON BEHEST LOANS is hereby created to be
The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the
composed of the following:
Committee), through Atty. Orlando L. Salvador (Atty. Salvador), filed this
Petition for Review on Certiorari seeking to nullify the October 9, 1997 Chairman of the Presidential
Commission on Good Government - Chairman
Resolution[1] of the Office of the Ombudsman in OMB-0-96-2428, dismissing
the criminal complaint against respondents on ground of prescription, and The Solicitor General - Vice-Chairman

the July 27, 1998 Order[2] denying petitioners motion for reconsideration. Representative from the
On October 8, 1992 then President Fidel V. Ramos issued Office of the Executive Secretary - Member

Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Representative from the
Committee on Behest Loans, which reads: Department of Finance - Member

Representative from the

WHEREAS, Sec. 28, Article II of the 1987 Department of Justice - Member
Constitution provides that Subject to reasonable
conditions prescribed by law, the State adopts and Representative from the
implements a policy of full public disclosure of all its Development Bank of the Philippines - Member
transactions involving public interest;

WHEREAS, Sec. 15, Article XI of the 1987 Representative from the

Constitution provides that The right of the state to recover Philippine National Bank - Member
properties unlawfully acquired by public officials or
employees, from them or from their nominees or Representative from the
transferees, shall not be barred by prescription, laches or Asset Privatization Trust - Member
estoppel;
Government Corporate Counsel - Member
WHEREAS, there have been allegations of loans,
guarantees, and other forms of financial accommodations Representative from the
granted, directly or indirectly, by government-owned and Philippine Export and Foreign
controlled bank or financial institutions, at the behest, Loan Guarantee Corporation - Member
command, or urging by previous government officials to
 The Ad Hoc Committee shall perform the WHEREAS, this end may be better served by
following functions: broadening the scope of the fact-finding mission of the
Committee to include all non-performing loans which shall
embrace behest and non-behest loans;
1. Inventory all behest loans; identify the lenders
and borrowers, including the principal officers
NOW THEREFORE, I, FIDEL V. RAMOS, President
and stockholders of the borrowing firms, as well
of the Republic of the Philippines, by virtue of the power
as the persons responsible for granting the loans
vested in me by law, do hereby order:
or who influenced the grant thereof;
Sec. 1. The Ad Hoc Fact-Finding Committee on
2. Identify the borrowers who were granted
Behest Loans shall include in its investigation, inventory,
friendly waivers, as well as the government
and study, all non-performing loans which shall embrace
officials who granted these waivers; determine
both behest and non-behest loans:
the validity of these waivers;
The following criteria may be utilized as a frame
3. Determine the courses of action that the
of reference in determining a behest loan:
government should take to recover those loans,
and to recommend appropriate actions to the
1. It is under-collateralized;
Office of the President within sixty (60) days from
the date hereof.
2. The borrower corporation is
undercapitalized;
The Committee is hereby empowered to call upon
any department, bureau, office, agency, instrumentality
3. Direct or indirect endorsement by high
or corporation of the government, or any officer or
government officials like presence of
employee thereof, for such assistance as it may need in
marginal notes;
the discharge of its functions.[3]
4. Stockholders, officers or agents of the
borrower corporation are identified as
By Memorandum Order No. 61 dated November 9, 1992, the cronies;
functions of the Committee were subsequently expanded, viz.:
5. Deviation of use of loan proceeds from
the purpose intended;
WHEREAS, among the underlying purposes for
the creation of the Ad Hoc Fact-Finding Committee on 6. Use of corporate layering;
Behest Loans is to facilitate the collection and recovery of
defaulted loans owing government-owned and controlled 7. Non-feasibility of the project for which
banking and/or financing institutions; financing is being sought; and
 8. Extraordinary speed in which the loan
release was made.
Moreover, a behest loan may be distinguished
from a non-behest loan in that while both may involve civil
liability for non-payment or non-recovery, the former may
likewise entail criminal liability.[4]
Several loan accounts were referred to the Committee for
investigation, including the loan transactions between Metals Exploration
Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the
Development Bank of the Philippines (DBP).
After examining and studying the documents relative to the loan
transactions, the Committee determined that they bore the characteristics
of behest loans, as defined under Memorandum Order No. 61 because the
stockholders and officers of PEMI were known cronies of then President
Ferdinand Marcos; the loan was under-collateralized; and PEMI was
undercapitalized at the time the loan was granted.
Specifically, the investigation revealed that in 1978, PEMI applied
for a foreign currency loan and bank investment on its preferred shares with
DBP. The loan application was approved on April 25, 1979 per Board
Resolution (B/R) No. 1297, but the loan was never released because PEMI
failed to comply with the conditions imposed by DBP. To accommodate
PEMI, DBP subsequently adopted B/R No. 2315 dated June 1980, amending
B/R No. 1297, authorizing the release of PEMIs foreign currency loan
proceeds, and even increasing the same. Per B/R No. 95 dated October 16,
1980, PEMI was granted a foreign currency loan of $19,680,267.00
or P146,601,979.00, and it was released despite non-compliance with the
conditions imposed by DBP. The Committee claimed that the loan had no
sufficient collaterals and PEMI had no sufficient capital at that time because
its acquired assets were only valued at P72,045,700.00, and its paid up
capital was only P46,488,834.00.
Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-
Finding Committee, and representing the Presidential Commission on Good
Government (PCGG), filed with the Office of the Ombudsman (Ombudsman)
a sworn complaint for violation of Sections 3(e) and (g) of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act, against the respondents
Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea;
Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco,
Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D.
Tanglao and Alicia Ll. Reyes.[5]
After considering the Committees allegation, the Ombudsman
handed down the assailed Resolution,[6] dismissing the complaint. The
Ombudsman conceded that there was ground to proceed with the conduct
of preliminary investigation.Nonetheless, it dismissed the complaint holding
that the offenses charged had already prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at
the time the subject loans were entered into; the financial
accommodations were undercollateralized at the time
they were granted; the stockholders and officers of the
borrower corporation are identified cronies of then
President Marcos; and the release of the said loans was
made despite non-compliance by PEMI of the conditions
attached therewith, which consequently give a semblance
that the subject Foreign Currency Loans are indeed Behest
Loans, the prosecution of the offenses charged cannot, at
this point, prosper on grounds of prescription.
It bears to stress that Section 11 of R.A. No. 3019
as originally enacted, provides that the prescriptive period
for violations of the said Act (R.A. 3019) is ten (10)
years. Subsequently, BP 195, enacted on March 16, 1982,
amended the period of prescription from ten (10) years to
fifteen (15) years
Moreover as enunciated in [the] case of People
vs. Sandiganbayan, 211 SCRA 241, the computation of the
prescriptive period of a crime violating a special law like
R.A. 3019 is governed by Act No. 3326 which provides,
thus:
xxxx
Section 2. Prescription shall
begin to run from the day of the
commission of the violation of law, and
if the same be not known at the time,
from the discovery thereof and the
institution of the judicial proceedings
for its investigation and punishment.
The prescription shall be
interrupted when the proceedings are
instituted against the guilty person, and
shall begin to run again if the
proceedings are dismissed for reasons
not constituting jeopardy.
Corollary thereto, the Supreme Court in the case
of People vs. Dinsay, C.A. 40 O.G. 12th Supp., 50, ruled that
when there is nothing which was concealed or needed to
be discovered because the entire series of transactions
were by public instruments, the period of prescription
commenced to run from the date the said instrument
were executed.
The aforesaid principle was further elucidated in
the cases of People vs. Sandiganbayan, 211 SCRA 241,
1992, and People vs. Villalon, 192 SCRA 521, 1990, where
the Supreme Court pronounced that when the
transactions are contained in public documents and the
execution thereof gave rise to unlawful acts, the violation
of the law commences therefrom. Thus, the reckoning
period for purposes of prescription shall begin to run from
the time the public instruments came into existence.
In the case at bar, the subject financial
accommodations were entered into by virtue of public
documents (e.g., notarized contracts, board resolutions,
approved letter-request) during the period of 1978 to
1981 and for purposes of computing the prescriptive
period, the aforementioned principles in the Dinsay,
Villalon and Sandiganbayan cases will apply. Records
show that the complaint was referred and filed with this
Office on October 4, 1996 or after the lapse of more than
fifteen (15) years from the violation of the
law. [Deductibly] therefore, the offenses charged had
already prescribed or forever barred by Statute of
Limitations.
It bears mention that the acts complained of
were committed before the issuance of BP 195 on March
2, 1982. Hence, the prescriptive period in the instant case
 is ten (10) years as provided in the (sic) Section 11 of R.A.
The Committee filed a Motion for Reconsideration, but the Ombudsman
3019, as originally enacted.
denied it on July 27, 1998.
Equally important to stress is that the subject
financial transactions between 1978 and 1981 transpired
at the time when there was yet no Presidential Order or Hence, this petition positing these issues:
Directive naming, classifying or categorizing them as
Behest or Non-Behest Loans. A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e)
AND (g) OF R.A. 3019 HAS ALREADY PRESCRIBED
To reiterate, the Presidential Ad Hoc Committee AT THE TIME THE PETITIONER FILED ITS
on Behest Loans was created on October 8, 1992 under COMPLAINT.
Administrative Order No. 13. Subsequently,
Memorandum Order No. 61, dated November 9, 1992, B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13
was issued defining the criteria to be utilized as a frame of AND MEMORANDUM ORDER NO. 61 ARE EX-
reference in determining behest loans. Accordingly, if POST FACTO LAW[S].[9]
these Orders are to be considered the bases of charging
respondents for alleged offenses committed, they
become ex-post facto laws which are proscribed by the
Constitution. The Supreme Court in the case of People v. The Court shall deal first with the procedural issue.
Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267
So 2dl, 5, held that an ex-post facto law is defined as a law
which provides for infliction of punishment upon a person
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and
for an act done which when it was committed, was
innocent.[7] Caringal argued that the petition suffers from a procedural infirmity which

warrants its dismissal. They claimed that the PCGG availed of the wrong
Thus, the Ombudsman disposed: remedy in elevating the case to this Court.

WHEREFORE, premises considered, it is hereby

respectfully recommended that the instant case be Indeed, what was filed before this Court is a petition captioned
DISMISSED.
as Petition for Review on Certiorari. We have ruled, time and again, that a
SO RESOLVED.[8]
petition for review on certiorari is not the proper mode by which resolutions

of the Ombudsman in preliminary investigations of criminal cases are

reviewed by this Court. The remedy from the adverse resolution of the

Ombudsman is a petition for certiorari under Rule 65,[10] not a petition for
review on certiorari under Rule 45.
However, though captioned as a Petition for Review on Certiorari, we will
treat this petition as one filed under Rule 65 since a reading of its contents
reveals that petitioner imputes grave abuse of discretion to the
Ombudsman for dismissing the complaint. The averments in the complaint,
not the nomenclature given by the parties, determine the nature of the
action.[11] In previous rulings, we have treated differently labeled actions as
special civil actions for certiorari under Rule 65 for reasons such as justice,
equity, and fair play.[12]
Having resolved the procedural issue, we proceed to the merits of the case.
As the Committee puts it, the issues to be resolved are: (i) whether
or not the offenses subject of its criminal complaint have prescribed, and (ii)
whether Administrative Order No. 13 and Memorandum Order No. 61
are ex post facto laws.
The issue of prescription has long been settled by this Court
in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto,[13] thus:
[I]t is well-nigh impossible for the State, the
aggrieved party, to have known the violations of R.A. No.
3019 at the time the questioned transactions were made
because, as alleged, the public officials concerned
connived or conspired with the beneficiaries of the loans.
Thus, we agree with the COMMITTEE that the prescriptive
period for the offenses with which the respondents in
OMB-0-96-0968 were charged should be computed from
the discovery of the commission thereof and not from the
day of such commission.[14]
The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Ombudsman Desierto,[15] wherein the Court explained:
In cases involving violations of R.A. No. 3019
committed prior to the February 1986 EDSA Revolution
that ousted President Ferdinand E. Marcos, we ruled that
the government as the aggrieved party could not have
known of the violations at the time the questioned
transactions were made. Moreover, no person would
have dared to question the legality of those
transactions. Thus, the counting of the prescriptive period
commenced from the date of discovery of the offense in
1992 after an exhaustive investigation by the Presidential
Ad Hoc Committee on Behest Loans.[16]
This is now a well-settled doctrine which the Court has applied in
subsequent cases involving the PCGG and the Ombudsman. [17]
Since the prescriptive period commenced to run on the date of the
discovery of the offenses, and since discovery could not have been made
earlier than October 8, 1992, the date when the Committee was created,
the criminal offenses allegedly committed by the respondents had not yet
prescribed when the complaint was filed on October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
[18]
Comment), conceded that the prescriptive period commenced from the
date the Committee discovered the crime, and not from the date the loan
documents were registered with the Register of Deeds. As a matter of fact,
it requested that the record of the case be referred back to the Ombudsman
for a proper evaluation of its merit.
Likewise, we cannot sustain the Ombudsmans declaration that
Administrative Order No. 13 and Memorandum Order No. 61 violate the
prohibition against ex post facto laws for ostensibly inflicting punishment
upon a person for an act done prior to their issuance and which was
innocent when done.
The constitutionality of laws is presumed. To justify nullification of
a law, there must be a clear and unequivocal breach of the Constitution, not
a doubtful or arguable implication; a law shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to
sustain.[19] Even this Court does not decide a question of constitutional
dimension, unless that question is properly raised and presented in an
appropriate case and is necessary to a determination of the case, i.e., the
[20]
issue of constitutionality must be the very lis mota presented.
Furthermore, in Estarija v. Ranada,[21] where the petitioner raised
the issue of constitutionality of Republic Act No. 6770 in his motion for
reconsideration of the Ombudsmans decision, we had occasion to state that
the Ombudsman had no jurisdiction to entertain questions on the
constitutionality of a law. The Ombudsman, therefore, acted in excess of its
jurisdiction in declaring unconstitutional the subject administrative and
memorandum orders.
In any event, we hold that Administrative Order No. 13 and
Memorandum Order No. 61 are not ex post facto laws.
An ex post facto law has been defined as one (a) which makes an
action done before the passing of the law and which was innocent when
done criminal, and punishes such action; or (b) which aggravates a crime or
makes it greater than it was when committed; or (c) which changes the
punishment and inflicts a greater punishment than the law annexed to the
crime when it was committed; or (d) which alters the legal rules of evidence
and receives less or different testimony than the law required at the time of
the commission of the offense in order to convict the defendant. [22] This
Court added two (2) more to the list, namely: (e) that which assumes to
regulate civil rights and remedies only but in effect imposes a penalty or
deprivation of a right which when done was lawful; or (f) that which deprives
a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal,
or a proclamation of amnesty.[23]
 The constitutional doctrine that outlaws an ex post facto law WHEREFORE, the petition is GRANTED. The assailed Resolution
generally prohibits the retrospectivity of penal laws. Penal laws are those and Order of the Office of Ombudsman in OMB-0-96-2428, are SET
acts of the legislature which prohibit certain acts and establish penalties for ASIDE. The Office of the Ombudsman is directed to conduct with dispatch
their violations; or those that define crimes, treat of their nature, and an evaluation of the merits of the complaint against the herein respondents.
[24]
provide for their punishment. The subject administrative and
memorandum orders clearly do not come within the shadow of this
definition. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-
SO ORDERED.
Finding Committee on Behest Loans, and provides for its composition and
functions. It does not mete out penalty for the act of granting behest
loans. Memorandum Order No. 61 merely provides a frame of reference for ANTONIO EDUARDO B. NACHURA
Associate Justice
determining behest loans. Not being penal laws, Administrative Order No.
13 and Memorandum Order No. 61 cannot be characterized as ex post
WE CONCUR:
facto laws. There is, therefore, no basis for the Ombudsman to rule that the
subject administrative and memorandum orders are ex post facto.

CONSUELO YNARES-SANTIAGO
One final note. Respondents Mapa and Zalamea, in their respective Acting Chief Justice
Chairperson
comments, moved for the dismissal of the case against them. Mapa claims
that he was granted transactional immunity from all PCGG-initiated
cases,[25] while Zalamea denied participation in the approval of the subject MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO
loans.[26] The arguments advanced by Mapa and Zalamea are matters of Associate Justice Associate Justice
defense which should be raised in their respective counter-affidavits. Since
the Ombudsman erroneously dismissed the complaint on ground of
RUBEN T. REYES
prescription, respondents respective defenses were never passed upon
Associate Justice
during the preliminary investigation. Thus, the complaint should be referred
back to the Ombudsman for proper evaluation of its merit.
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Acting Chief Justice
EN BANC
[G.R. No. 130140. October 25, 1999]
PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON
BEHEST LOANS represented by MAGTANGGOL C.
GUNIGUNDO, PCGG Chairman and ORLANDO C.
SALVADOR, as Consultant, Technical Working Group of the
Presidential Ad Hoc Fact-Finding Committee on Behest
Loans, petitioners, vs. HON. ANIANO A. DESIERTO as
Ombudsman; JOSE Z. OSIAS; PACIFICO E. MARCOS;
EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA;
and JUANITO ORDOVEZA, Members of the Board of
Directors of Philippine Seeds, Inc.; CONCERNED MEMBERS
OF THE DEVELOPMENT BANK OF THE
PHILIPPINES, respondents.
DECISION
DAVIDE, JR., C.J.:
The core issue in this special civil action for certiorari is whether public
respondent Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN)
committed grave abuse of discretion in holding that the offenses with which
the other respondents were charged in OMB-0-96-0968 had already
prescribed.
This case originated as G.R. No. 129763, the docket number given to
the Motion for Extension of Time to File Petition for Review filed by the
Presidential Commission on Good Government (PCGG).[1] The motion was
granted. However, what was filed was a petition for certiorari under Rule 65
of the 1997 Rules of Civil Procedure, with the Presidential Ad Hoc Fact-
Finding Committee on Behest Loans (hereafter COMMITTEE) as
petitioner. The petition was docketed as G.R. No. 130140. Accordingly, G.R.
No. 129763 is now deemed functus officio.
Initially, the Court dismissed the petition in this case on technical
grounds. But, upon petitioners motion for reconsideration, the petition was
reinstated, and the respondents were required to comment on the petition.
In its Manifestation (In Lieu of Comment),[2] the Development Bank of
the Philippines (DBP) manifested that it would rel[y] on the evaluation and
exercise of the discretionary power conferred on Petitioner in the prosecution
of the instant petition.
In its Manifestation and Motion[3] of 16 February 1998, the Office of
the Solicitor General (OSG) informed the Court that it could not represent the
OMBUDSMAN for the following reasons: (a) the Solicitor General is the
Vice-Chairman of petitioner COMMITTEE; (b) being an agency of the
Government, the COMMITTEE is entitled to be represented by the OSG; and
(c) the petition was signed by Associate Solicitor Salvador C. Guevarra, who
is presently on detail with the PCGG, and by Commissioner Herminio A.
Mendoza of the PCGG, which is also a client of the OSG.The Court then
required the OMBUDSMAN to file his own comment, which he did on 11
June 1998.[4]
Copies of the resolution requiring comment on the petition sent to the
other respondents were returned to sender because the said respondents had
MOVED. Since the challenged resolution and order of the OMBUDSMAN
were issued before said other respondents were even required to submit their
counter-affidavits, impleading them in this case is not necessary; hence, this
case can be resolved without their inclusion as respondents.
As culled from the initiatory pleadings and MEMORANDA of the
COMMITTEE and the OMBUDSMAN, the undisputed facts are as follows:
 On 8 October 1992, President Fidel V. Ramos issued Administrative
Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor
General as Vice Chairman; and one representative each from the Office of
the Executive Secretary, Department of Finance, Department of Justice,
Development Bank of the Philippines, Philippine National Bank, Asset
Privatization Trust, Government Corporate Counsel, and the Philippine
Export and Foreign Loan Guarantee Corporation as members. The
Committee was directed to perform the following functions:
1. Inventory all behest loans; identify the lenders and borrowers,
including the principal officers and stockholders of the
borrowing firms, as well as the persons responsible for
granting the loans or who influenced the grant thereof;
2. Identify the borrowers who were granted friendly waivers, as
well as the government officials who granted these waivers;
determine the validity of these waivers.
3. Determine the courses of action that the government should take
to recover those loans, and to recommend appropriate actions
to the Office of the President within sixty (60) days from the
date hereof.
On 9 November 1992, President Ramos issued Memorandum Order No.
61 directing the COMMITTEE to include in its investigation, inventory, and
study all non-performing loans which shall embrace both behest and non-
behest loans. It likewise provided for the following criteria which might be
utilized as a frame of reference in determining a behest loan, to wit:
a. It is undercollateralized.
b. The borrower corporation is undercapitalized.
c. Direct or indirect endorsement by high government officials like
presence of marginal notes.
d. Stockholders, officers or agents of the borrower corporation are
identified as cronies.
e. Deviation of use of loan proceeds from the purpose intended.
f. Use of corporate layering.
g. Non-feasibility of the project for which financing is being
sought.
h. Extraordinary speed in which the loan release was made.
xxx
Moreover, a behest loan may be distinguished from a non-behest loan
in that while both may involve civil liability for non-payment or non-
recovery, the former may likewise entail criminal liability.
In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to
President Ramos, dated 15 July 1993,[5] the COMMITTEE reported that the
Philippine Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-
96-0968 were the Directors, was one of the twenty-one corporations which
obtained behest loans.
In his instructions handwritten on the cover of the aforementioned
Report, President Ramos directed COMMITTEE Chairman Magtanggol C.
Gunigundo to, inter alia, proceed with administrative and judicial actions
against the twenty-one firms (out of 21) in this batch with positive findings
ASAP.[6]
On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the
PCGG consultant detailed with the COMMITTEE, filed with the
OMBUDSMAN a sworn complaint[7] against the Directors of PSI namely,
Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez, Fernando C.
Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank
of the Philippines who approved the loans for violation of paragraphs (e) and
(g) of Section 3 of Republic Act No. 3019, as amended, which read:
Sec. 3. Corrupt Practices of Public Officers. - In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
...
e. Causing any undue injury to any party, including the Government or
giving any private party any unwarranted benefit, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence.This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
...
g. Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
The complaint, later docketed as OMB-0-96-0968, alleged as follows:
4. The evidence submitted to us show that:
a) Philippine Seeds, Inc. (PSI) obtained its initial loan guarantee
on April 17, 1969 under B/R 2805 (Annex 1, Evidence 3) with
an aggregate amount of $3,452,535. or P13,568,463. (P3.93 to
$1) . . . .
Based on the foregoing DBP approved Guarantee Loans,
PSI still had a collateral deficiency of P5,444,432, and likewise
DBP infused the amount of P3,824,911 as against the
corporations paid-up capital of P2,225,000 only.
b) Subsequent loans/guarantees were extended by DBP for the
benefit and/or advantage of PSI under the following Board
Resolutions:
1) B/R 3353 dated August 13, 1975 (Annex 2, Evidence 4) for the
following purposes:
(a) DBP to extend a loan of P215,000 at 12% interest per
annum for repairs & rehabilitation of the PSI plant within
a period of four (4) months from the full release of the
amount.
(b) DBP to extend a short term of P6 million at 12% interest
per annum for its working capital.
(c) DBP to assume PSI loans with commercial banks.
(d) DBP to restructure PSI existing obligations if after 6
months of trial period, operations proved profitable and
viable.
(e) DDBP to suspend foreclosure for 10 months.
2) B/R 883 series 1978, (Annex 3, Evidence 9) DBP Board
approved a P2.9 million loan for the following purposes:
(a) P1.9 million to liquidate PSIs obligation with other
creditors.
(b) P1.0 million to finance PSIs special projects.
(c) DBP initiated PSI foreclosures starting March 1975 but
it was not implemented by virtue of then President
Marcos marginal notes dated April 1975 (Annex 4,
Evidence 6) and June 1995 (Annex 5, Evidence 7).
(d) Pacifico Marcos and Eduardo Romualdez, relatives of
the late President Marcos, were the principal
stockholders and officers of the subject firm.
5. As a private entity, Philippine Seeds, Inc., did not deserve the
concessions given it without sufficient collateral for the loan
and adequate capital to ensure not only the viability of its
operations but its ability to repay all its loans.
In the resolution[8] dated 14 May 1996 and approved on 9 June 1996,
the OMBUDSMAN dismissed the complaint in OMB-0-96-0968 on the
ground of prescription. Relying on People v. Dinsay,[9] a case decided by the
Court of Appeals, he ratiocinated that since the questioned transactions were
evidenced by public instruments and were thus open for the perusal of the
public, the prescriptive period commenced to run from the time of the
commission of the crime, not from the discovery thereof. Reckoning the
prescriptive period from 1969, 1970, 1975, and 1978, when the disputed
transactions were entered into, the OMBUDSMAN ruled that the offenses
with which respondents were charged had already prescribed.
Its motion for reconsideration having been denied by the
OMBUDSMAN in the Order[10] of 19 May 1997, the COMMITTEE filed this
case raising this sole issue:
WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN
GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE
PRESCRIPTIVE PERIOD IN THIS CASE SHOULD BE COUNTED
FROM THE DATE OF THE GRANT OF THE BEHEST LOANS
INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE
SAME BY THE COMMITTEE.
The COMMITTEE argues that the right of the Republic of the
Philippines to recover behest loans as ill-gotten wealth is imprescriptible
pursuant to the mandate of Section 15 of Article XI of the Constitution, which
provides:
The right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees as transferees,
shall not be barred by prescription, laches, or estoppel.
Behest loans are part of the ill-gotten wealth which former President Marcos
and his cronies accumulated and which the Government through the PCGG
seeks to recover. Besides, even assuming ex gratia that the right to file
criminal charges against the respondents is prescriptible, the prescriptive
period should be counted from the discovery of the crimes charged,
and not from the date of their commission. The ruling in Dinsay is not
applicable to the case at bar. First, it is a decision of the Court of Appeals;
hence, it does not establish a doctrine and can only have a persuasive
value. Second, it involved a prosecution for estafa in that the accused
disposed of his property claiming that it was free from any lien or
encumbrance despite the fact that a notice of lis pendens was registered with
the Registry of Deeds. The sale, cancellation of the accuseds title, and
issuance of a new title to the buyer could not have been concealed from the
offended parties or their lawyers because these transactions took place when
the civil case involving the said property and the offended parties was in
progress. Third, Dinsay involved private parties, while the instant case
involves the Government and public officers. Fourth, the ruling is not
absolute, since no less than this Court in People vs. Monteiro[11] said:
[T]he period of prescription for the offense of failure to register with the
SSS shall begin from the day of the discovery of the violation if this was not
shown at the time of its commission. A contrary view would be dangerous
as the successful concealment of an offense during the period fixed for its
prescription would be the very means by which the offender may escape
punishment. (Emphasis supplied)
Also, in People v. Duque,[12] which involved a prosecution for illegal
recruitment under Article 38 of the Labor Code, this Court held:
Even if it be assumed arguendo that ordinary prudence required that a
person seeking overseas employment ought to check the authority or status
of persons pretending to be authorized or to speak for a recruitment or
placement agency, the offended parties failure to do so did not start the
running of the prescriptive period. In the nature of things, acts made
criminal by special laws are frequently not immoral or obviously criminal in
themselves; for this reason, the applicable statute requires that if the
violation of the special law is not known at that time, the prescription
begins to run only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts. (Emphasis supplied)
Finally, the COMMITTEE asserts that even assuming that the discovery
rule does not apply, still, because of the principle of equitable tolling,
prescription has not yet set in for the offenses with which respondents in
OMB-0-96-0960 were charged. This principle is based on the doctrine contra
non valentem agere nulla currit praescriptio, i.e., no prescription shall run
against a person unable to bring an action. The COMMITTEE was unable to
bring the action, for the cause therefor was not known or reasonably known
to it owing to the fact that (1) the loans, being behest, were concealed; (2)
both parties to the loan transactions were in conspiracy to perpetrate the fraud
against the State; and (3) the loans were granted at the time then President
Marcos was at the threshold of his authority when no one dared question,
much less investigate, any of his orders.
The OMBUDSMAN takes a different view. For one, he asserts that
Section 15 of Article XI of the Constitution is not applicable, since what the
COMMITTEE seeks in OMB-0-96-0968 is not to recover the unlawfully
acquired wealth from the respondents therein but to hold them criminally
liable for violation of R.A. No. 3019. The dismissal of the case is not a bar to
the institution of forfeiture proceedings against the concerned former
government officials and cronies.
For another, the OMBUDSMAN insists that the offenses with which
the respondents were charged had already prescribed. As a matter of fact it
prescribed in ten years pursuant to the original provision of Section 11 of
R.A. No. 3019, which fixed the prescriptive period at ten years. B.P. Blg.
195, which increased the prescriptive period to fifteen years, became
effective only on 16 March 1982 and cannot be given retroactive effect;
hence, the offenses which might have arisen from the grant of the assailed
loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and 1988,
respectively.
The OMBUDSMAN points to Section 2 of Act No. 3326, which
governs prescription of crimes under special laws and which reads as follows:
Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof . . .
According to him, the computation of the prescriptive period from the date
of discovery would only be resorted to if the commission of the crime be not
known at the day of the commission. The phrase if the same be not known
does not mean lack of actual knowledge, but that the crime is not reasonably
knowable by reason of the nature of the crime or the environmental
circumstances thereof. In the case filed by the COMMITTEE, the crimes
alleged to have been committed were reasonably knowable because the
transactions were never conducted clandestinely ... [but] carried out in the
open, leaving a trail of public instruments/documents accessible and
susceptible to evaluation. Moreover, as can be drawn from the allegation in
the COMMITTEEs complaint that the DBP initiated PSI foreclosures starting
March 1975, the corresponding mortgages were executed and
registered. Hence, the doctrine laid down in Dinsay is applicable. Likewise,
in People v. Sandiganbayan,[13] this Court ruled that the prescriptive period
for the violation of R.A. No. 3019, which was allegedly committed by
Paredes by misrepresenting in an application for land patent that the subject
land was disposable, started to run from the date of the filing of the
application. Yet, in said case the falsity of Paredes representation regarding
the disposability of the land was not capable of being drawn from the
application alone; nevertheless, this Court was not deterred from holding that
prescription started to run from the filing of the application.
Finally, the OMBUDSMAN maintains that any confidential
relationship between the former strongman and the respondents DBP officials
ceased altogether after the February 1986 EDSA revolution. Even assuming
then that the running of the 10-year period of prescription was suspended by
reason of the said confidential relationship, the same re-started in February
1986 and went on to lapse in February 1996. However, the complaint of the
COMMITTEE in OMB-0-96-0968 was filed only on 2 March 1996.
We agree with the OMBUDSMAN that Section 15 of Article XI of the
Constitution applies only to civil actions for recovery of ill-gotten wealth,
and not to criminal cases, such as the complaint against the respondents in
OMB-0-96-0968. This is clear from the proceedings of the Constitutional
Commission of 1986.
What is now Section 15 of Article XI of the Constitution was originally
Section 13 of the proposed Article on Accountability of Public Officers in
Committee Report No. 17 submitted to the Constitutional Commission by its
Committee on Accountability of Public Officers,[14] viz:
The right of the State to recover properties unlawfully acquired by public
officials or employees shall not be barred by prescription.
At the plenary session, Commissioner Hilario G. Davide, Jr., succeeded in
having that Section amended. Thus:
MR. DAVIDE. Madam President.
MR. DAVIDE. Would the proponent accept some amendments?
MR MAAMBONG. Gladly.
MR. DAVIDE. The amendment of Section 13 will consist of the
following: On line 25, after the word employees, add the
following: OR THEIR CO-PRINCIPALS, ACCOMPLICES OR
ACCESSORIES OR TO PROSECUTE OFFENSES IN
CONNECTION THEREWITH; then on line 25, after the word
prescription, add a comma (,) and the words LACHES OR
ESTOPPEL. So the entire Section 13 will read as follows: The right
of the State to recover properties unlawfully acquired by public
officials or employees OR THEIR CO-PRINCIPALS,
ACCOMPLICES OR ACCESSORIES OR TO PROSECUTE
OFFENSES IN CONNECTION THEREWITH shall not be barred
by prescription, LACHES OR ESTOPPEL.
...
 MR. DAVIDE. I would like to insist on my proposal for the plain and
simple reason that the republic act on forfeiture of ill-gotten wealth
would cover only the civil aspect. As a matter of fact, any
prosecution for the criminal aspect of that will have to be taken
under the Anti-Graft and Corrupt Practices Act. That is why it is
necessary to include here, specifically, the criminal action and
the imprescriptibility of the criminal action. Besides, what is stated
in the law on ill-gotten wealth and recovery thereof would refer to
prescription or statute of limitations. We know for a fact that there
are two other concepts in Civil Law. We have laches and
estoppel. Laches, for instance, is a concept entirely different from
prescription. While an action may not prescribe, it may be barred by
laches and while an action may not prescribe or may not be barred
by laches, it may also be a limitation because of estoppel. So, if we
really want to strengthen this particular concept, we should be very
specific in having it related to both criminal and civil actions. In
addition to prescription, we should also include laches and estoppel.
...
THE PRESIDENT. Is it accepted by the Committee?
MR. NOLLEDO. After consultations, the Committee is happy to
announce that we are accepting the amendment.
MR. DAVIDE. Thank you, Madam President; I also thank the members
of the Committee.
THE PRESIDENT. Is there any objection? (Silence) The Chair hears
none; the amendment is approved.[15] (Emphasis supplied).
As shown, the amendment made the provision applicable as well to
criminal actions arising from, relating or incident to, or involving ill-gotten
wealth.
However, on motion for reconsideration by Commissioner Christian
Monsod, who explained that the intention of the Committee was to limit the
proposed Section 13 to civil actions, and without objection on the part of
Commissioner Davide, the motion for reconsideration was granted. As a
consequence, the amendment of Commissioner Davide regarding the
applicability of the Section to criminal actions was deleted. After further
proceedings the Section was further amended by the insertion of the phrase
from them or from their transferees. Thus:
MR. BENGZON. There is just one loose thread hanging in the Article on
Accountability of Public Officers and I would like to get this out of
the way. May I suggest that Commissioner Monsod be recognized.
THE PRESIDING OFFICER. (Mr. de los Reyes). Commissioner
Monsod is recognized.
MR. MONSOD. We circulated to the Commissioners a memorandum
that was unanimously endorsed by the members of the committee,
except for one member who [was] absent. In this memorandum, we
suggested the deletion of a phrase which we consider redundant in
the context of the intent of the committee.We wanted to ask the body
for any comment it may have on it because we feel we do not need
to reopen the article if the body agrees with us that it is not a
substantial change, but a change to reflect the intention of the body
and the committee on this matter.
THE PRESIDING OFFICER (Mr. de los Reyes). On what article is that,
Commissioner Monsod?
MR. MONSOD. It is on the Article on Accountability of Public Officers
which was circulated a couple of days ago.
On Section 13, lines 7 and 8, we propose to delete the phrase or to
prosecute offenses in connection therewith. The committee
considers this phrase redundant with its intent on the recovery of
property illegally acquired. The action contemplated by the
committee is a civil action. However, since jurisprudence considers
such action for recovery as partaking of a criminal action, we believe
that it is not necessary to mention or to prosecute offenses in
connection therewith. Hence, we ask the body if there is any
objection to delete that phrase.
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod,
what is the phrase sought to be deleted?
MR. MONSOD. The phrase or to prosecute offenses in connection
therewith.
...
MR. MONSOD. May we ask Commissioner Davide, the proponent of
some of these amendments, on this article?
THE PRESIDING OFFICER (Mr. de los Reyes) Commissioner Davide
is recognized.
MR. DAVIDE. Thank you, Mr. Presiding Officer.
After deeper reflection on the consequences of the amendments which I
introduced and which are now sought to be deleted, and taking into
account the massive consensus of opinions on the part of the
committee which is now seeking for its reconsideration, I would
have no objection to it. However, there is a point to be taken up and
I understand that Commissioner Regalado has also a point to take
up on this.
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner
Regalado is recognized.
MR. REGALADO. Thank you, Mr. Presiding Officer.
I move for the deletion of the phrase co-principals, accomplices or
accessories, because what is contemplated in that amendment is a
civil action. The phrase co-principals, accomplices and accessories
is proper only in a criminal action. So, I have asked the committee
to delete those words.
THE PRESIDING OFFICER (Mr. de los Reyes). So, how will the section
now read?
MR. MONSOD. The section as amended by deletion will now read: Sec.
13. The right of the State to recover properties unlawfully acquired
by public officials or employees shall not be barred by prescription,
laches or estoppel.
THE PRESIDING OFFICER (Mr. de los Reyes). So for the information
of the Members of the Commission, what phrases are deleted?
MR. MONSOD. The phrases that are deleted are as follows: or to
prosecute offenses in connection therewith and or their co-
principals, accomplices or accessories.
THE PRESIDING OFFICER (Mr. de los Reyes). So, in effect, the
Commissioner is asking for a reconsideration.
MR. MONSOD. It has been suggested that that would be appropriate in
order to make sure that this is properly regularized.
RECONSIDERATION OF APPROVAL
OF PROPOSED RESOLUTION NO. 456
(Article on the Accountability of Public Officers)
THE PRESIDING OFFICER (Mr. de los Reyes). As many as are in favor
of reconsidering Section 13, please raise their hand. (Several
Members raised their hand.)
As many as are against, please raise their hand. (No Member raised his
hand).
The results show 27 votes in favor and 1 against; the reconsideration is
approved.[16]
Commissioner Monsod is again recognized.
MR MONSOD. I propose that we delete the phrases: or their co-
principals, accomplices or accessories and or to prosecute offenses
in connection therewith. So, the entire article will now read: The
right of the State to recover properties unlawfully acquired by public
officials or employees shall not be barred by prescription, laches or
estoppel.
...
THE PRESIDING OFFICER (Mr. de los Reyes). Is there any objection
to the amendment of Commissioner Monsod?
Commissioner Azcuna is recognized.
MR AZCUNA. Mr. Presiding Officer, the phrase co-principals,
accomplices and accessories refers to criminal cases. So I propose
to insert the phrase OR THEIR TRANSFEREES IN BAD FAITH
in order to be able to recover these properties even from transferees
of the public officers if they are done in bad faith. Hence, the
amended section will read: The right of the State to recover
properties unlawfully acquired by public officials or employees OR
THEIR TRANSFEREES IN BAD FAITH.
THE PRESIDING OFFICER (Mr. de los Reyes). What does
Commissioner Monsod say?
MR. MONSOD. We have no objection to that, but I understand there is a
comment on this matter.
...
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod
is recognized.
MR MONSOD. In order to clarify the intent of the amendment, we
suggest that the amendment be stated this way: FROM THEM OR
FROM THEIR TRANSFEREES. So, the entire section will read:
The right of the State to recover properties unlawfully acquired by
public officials or employees FROM THEM OR FROM THEIR
TRANSFEREES shall not be barred by prescription, laches or
estoppel.
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Azcuna
is recognized.
MR AZCUNA. I accept the amendment.
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner
Maambong is recognized.
MR. MAAMBONG. Mr. Presiding Officer, I recall I presented an
amendment precisely on this provision. I gave way to Commissioner
Davide at that time because the imprescriptibility provision was
supposed to cover both criminal and civil actions. I just want to
clarify this from Commissioner Monsod or from Commissioner
Davide if in the present formulation, what is covered is only
imprescriptibility of civil action and not of criminal
action. Commissioner Davide can probably answer that.
MR. MONSOD. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod
is recognized.
MR. MONSOD. Yes, it is just the imprescriptibility of the civil action.
MR. MAAMBONG. If only civil action, it does not cover
imprescriptibility of criminal action.
MR. MONSOD. Yes, that is right.
MR. MAAMBONG. Thank you.
THE PRESIDING OFFICER (Mr. de los Reyes). Is the Commission now
prepared to vote on the issue?
MR. RAMA. Yes.
THE PRESIDING OFFICER (Mr. de los Reyes). Is there any objection
to the amendment of Commissioner Monsod? (Silence) The Chair
hears none; the amendment is approved.[17] (Emphasis supplied).
Then, on motion of the Committee on Style, the Section 13 which
became Section 15, was approved; thus:
MR. RODRIGO. In Section 15, we inserted: FROM THEM OR FROM
THEIR NOMINEES OR TRANSFEREES and we deleted co-
principals, accomplices or accessories or to prosecute offenses in
connection therewith. So, Section 15 reads: The right of the State to
recover properties unlawfully acquired by public officials or
employees, FROM THEM OR FROM THEIR NOMINEES OR
TRANSFEREES shall not be barred by prescription, laches, or
estoppel.
I move for its approval.
THE PRESIDING OFFICER (Mr. Jamir). Is there any
objection? (Silence). The Chair hears none; the amendment is
approved.[18]
The upshot of the foregoing discussion is that the prosecution of
offenses arising from, relating or incident to, or involving ill-gotten wealth
contemplated in Section 15, Article XI of the Constitution may be barred by
prescription.
Since the law alleged to have been violated, i.e., paragraphs (e) and (g)
of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule
in the computation of the prescriptive period is Section 2 of Act No.
3326,[19] as amended, which provides:
Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof and institution of judicial proceedings for its investigation
and punishment.
The prescription shall be interrupted when proceedings are instituted against
the guilty person and shall begin to run again if the proceedings are
dismissed for reasons not constituting double jeopardy.
This simply means that if the commission of the crime is known, the
prescriptive period shall commence to run on the day it was committed.
In the present case, it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of R.A. No. 3019 at the time
the questioned transactions were made because, as alleged, the public
officials concerned connived or conspired with the beneficiaries of the loans.
Thus, we agree with the COMMITTEE that the prescriptive period for the
offenses with which the respondents in OMB-0-96-0968 were charged should
be computed from the discovery of the commission thereof and not from the
day of such commission.
The assertion by the OMBUDSMAN that the phrase if the same be not
known in Section 2 of Act No. 3326 does not mean lack of knowledge but
that the crime is not reasonably knowable is unacceptable, as it provides an
interpretation that defeats or negates the intent of the law, which is written in
a clear and unambiguous language and thus provides no room for
interpretation but only application.
The OMBUDSMANs reliance on Dinsay is misplaced. The estafa
committed by the accused was known to the offended party from the very
start; hence, it could even be said that the commission and the discovery of
the offense were simultaneous.[20] Neither is People v. Sandiganbayan[21] of
any help to OMBUDSMAN. We ruled therein that the prescriptive period
commenced to run from the filing of the application for the following reasons:
The theory of the prosecution that the prescriptive period should not
commence upon the filing of Paredes application because no one could have
known about it except Paredes and Lands Inspector Luison, is not correct
for, as the Sandiganbayan pointedly observed: it is not only the Lands
Inspector who passes upon the disposability of public land x x x other
public officials pass upon the application for a free patent including the
location of the land and, therefore, the disposable character thereof (p.
30, Rollo). Indeed, practically all the department personnel, who had a hand
in processing and approving the application, namely: (1) the lands inspector
who inspected the land to ascertain its location and occupancy; (2) the
surveyor who prepared its technical description; (3) the regional director
who assessed the application and determined the land classification; (4) the
Director of Lands who prepared the free patent; and (5) the Department
Secretary who signed it, could... have helped discovering that the subject of
the application was non disposable public agricultural land.
There was no showing that Paredes had connived with all the department
personnel, who had a hand in processing and approving the application of
Paredes. Consequently, such personnel could have easily discovered the
falsity in Paredes claim and denounced it. It would have been entirely
different if the public officials concerned conspired with him, in which case,
they would have hidden the misdeed to escape culpability.
People v. Duque[22] is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special laws are
frequently not immoral or obviously criminal in themselves; for this reason,
the applicable statute requires that if the violation of the special law is not
known at the time, the prescription begins to run only from the discovery
thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.
In the case at bar the OMBUDSMAN forthwith dismissed the complaint
in Case No. OMB-0-96-0968 without even requiring the respondents to
submit their counter-affidavits and solely on the basis of the dates the alleged
behest loans were granted, or the dates of the commission of the alleged
offense was committed.
Since the computation of the prescriptive period for the filing of the
criminal action should commence from the discovery of the offense, the
OMBUDSMAN clearly acted with grave abuse of discretion in dismissing
outright Case No. OMB-0-96-0968. It should have first received the evidence
from the complainant and the respondents to resolve the case on its merits
and on the issue of the date of discovery of the offense.
IN LIGHT OF ALL THE FOREGOING, judgment is hereby
rendered GRANTING the petition, and SETTING ASIDE the resolution of
14 May 1996 and the Order of 19 May 1997 of the public respondent
OMBUDSMAN in Case No. OMB-0-96-0968.
 The OMBUDSMAN is hereby directed to proceed with the preliminary
investigation of the case OMB-0-96-0968 taking into account the foregoing
disquisitions.
No pronouncement as to costs.
SO ORDERED.
Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-
Reyes, and De Leon, Jr., JJ., concur.
Melo, J., see concurring and dissenting opinion.
Puno, J., see concurring and dissenting opinion.
Vitug, J., see concurring opinion.
Bellosillo, J., joins J. Melo in his concurring and dissenting opinion.
Kapunan, Pardo, and Ynares-Santiago, JJ., joins J. Puno in his
concurring and dissenting opinion.
FIRST DIVISION
[G.R. Nos. 108135-36. August 14, 2000]
POTENCIANA M. EVANGELISTA, petitioner, vs. THE
PEOPLE OF THE PHILIPPINES and THE HONORABLE
SANDIGANBAYAN, (FIRST DIVISION), respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On September 30, 1999, we rendered a Decision in this
case acquitting petitioner of the charge of violation of then
Section 268 (4) of the National Internal Revenue Code[1] but
affirming her conviction for violation of Republic Act No.
3019, Section 3 (e),[2] thus imposing on her an indeterminate
sentence of imprisonment for six (6) years and one month as
minimum to twelve (12) years as maximum, and the penalty
of perpetual disqualification from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. filed with
the Bureau of Internal Revenue an application for tax credit
in the amount of P180,701,682.00, for allegedly erroneous
payments of ad valorem taxes from January 1, 1986 to
August 31, 1987. Tanduay claimed that it is a rectifier of
alcohol and other spirits, which per previous ruling of the BIR
is only liable to pay specific taxes and not ad valorem taxes.
Upon receipt of the application, Aquilino Larin of the Specific
Tax Office sent a memorandum to the Revenue Accounting
Division (RAD), headed by petitioner, requesting the said
office to check and verify whether the amounts claimed by
Tanduay were actually paid to the BIR as ad valorem taxes.
Larins memorandum was received by the Revenue
Administrative Section (RAS), a subordinate office of the
RAD. After making the necessary verification, the RAS
prepared a certification in the form of a 1st Indorsement to
the Specific Tax Office, dated September 25, 1987, which
was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax
payments classified under Tax Numeric Code (TNC) 3011-
0001 totalling P102,519,100.00 and payments classified
under TNC 0000-0000 totalling P78,182,582.00. Meanwhile,
Teodoro Pareo, head of the Tax and Alcohol Division,
certified to Justino Galban, Jr., Head of the Compounders,
Rectifiers and Repackers Section, that Tanduay was a
rectifier not liable for ad valorem tax. Pareo recommended to
Larin that the application for tax credit be given due course.
Hence, Larin recommended that Tanduays claim be
approved, on the basis of which Deputy Commissioner
Eufracio D. Santos signed Tax Credit Memo No. 5177 in the
amount of P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a letter-
complaint to then BIR Commissioner Bienvenido Tan, Jr.
alleging that the grant of Tax Credit Memo No. 5177 was
irregular and anomalous. Based on this, Larin, Pareo,
Galban and petitioner Evangelista were charged before the
Sandiganbayan with violation of Section 268 (4) of the
National Internal Revenue Code and of Section 3 (e) of R.A.
3019, the Anti-Graft and Corrupt Practices Act. Larin, Pareo
and petitioner were later convicted of both crimes, while
Galban was acquitted inasmuch as his only participation in
the processing of Tanduays application was the preparation
of the memorandum confirming that Tanduay was a rectifier.
The three accused filed separate petitions for review. Pareos
and Larins petitions were consolidated and, in a decision
dated April 17, 1996, both were acquitted by this Court in
Criminal Cases Nos. 14208 and 14209.[3] In this petition, on
the other hand, we acquitted petitioner in Criminal Case No.
14208, for violation of Section 268 (4) of the NIRC. However,
we found petitioner guilty of gross negligence in issuing a
certification containing TNCs which she did not know the
meaning of and which, in turn, became the basis of the
Bureaus grant of Tanduays application for tax credit. Thus,
we affirmed petitioners conviction in Criminal Case No.
14209, i.e., for violation of Section 3 (e) of the Anti-Graft and
Corrupt Practices Act.
Petitioner seasonably filed a Motion for
Reconsideration,[4] wherein she asserts that there was
nothing false in her certification inasmuch as she did not
endorse therein approval of the application for tax credit.
Rather, her certification showed the contrary, namely, that
Tanduay was not entitled to the tax credit since there was no
proof that it paid ad valorem taxes. Petitioner also claims
that she was neither afforded due process nor informed of
the nature and cause of the accusation against her. She was
found guilty of an offense different from that alleged in the
information; consequently, she was unable to properly
defend herself from the crime for which she was convicted.
The Information against petitioner and her co-accused in
Criminal Case No. 14209 alleges in fine that they caused
undue injury to the Government and gave unwarranted
benefits to Tanduay when they endorsed approval of the
claim for tax credit by preparing, signing and submitting false
memoranda, certification and/or official communications
stating that Tanduay paid ad valorem taxes when it was not
liable for such because its products are distilled spirits on
which specific taxes are paid, by reason of which false
memoranda, certification and/or official communications the
BIR approved the application for tax credit, thus defrauding
the Government of the sum of P107,087,394.80,
representing the difference between the amount claimed as
tax credit and the amount of ad valorem taxes paid by
Tanduay to the BIR.[5] According to petitioner, instead of
convicting her of the acts described in the Information, she
was convicted of issuing the certification without identifying
the kinds of tax for which the TNCs stand and without
indicating whether Tanduay was really entitled to tax credit
or not.
The Solicitor General filed his Comment[6] wherein he joined
petitioners cause and prayed that the motion for
reconsideration be granted. In hindsight, even the Solicitor
Generals comment on the petition consisted of a
"Manifestation and Motion in lieu of Comment,"[7] where he
recommended that petitioner be acquitted of the two charges
against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it
would appear that the certification made by petitioner in her
1st Indorsement was not favorable to Tanduays application
for tax credit. Far from it, petitioners certification meant that
there were no payments of ad valorem taxes by Tanduay in
the records and hence, it was not entitled to tax credit. In
other words, the certification was against the grant of
Tanduays application for tax credit.
It has been established that the BIR adopted tax numeric
codes (TNCs) to classify taxes according to their kinds and
rates, in order to facilitate the preparation of statistical and
other management reports, the improvement of revenue
accounting and the production of tax data essential to
management planning and decision-making. These codes
include TNC No. 3011-0001 for specific tax on domestic
distilled spirits, TNC No. 3023-2001 for ad valorem tax on
compounded liquors, and TNC No. 0000-0000 for
unclassified taxes.
Petitioners 1st Indorsement dated September 25, 1987 lists
down the confirmation receipts covering tax payments by
Tanduay for the period January 1, 1986 to August 31, 1987,
during which Tanduay alleges that it made erroneous ad
valorem tax payments, classified according to TNC numbers.
The tax payments therein are described only as falling under
TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-
0000, i.e., unclassified taxes. There are no tax payments
classified as falling under TNC No. 3023-2001, the code for
ad valorem taxes. The import of this, simply, is that Tanduay
did not make any ad valorem tax payments during the said
period and is, therefore, not entitled to any tax credit.
Further, petitioner contends that she was convicted of a
supposed crime not punishable by law.[8] She was charged
with violation of Section 3 (e) of Republic Act No. 3019, the
Anti-Graft and Corrupt Practices Act, which states:
SEC. 3. Corrupt practices of public officers. --- In
addition to acts or omissions of public officers
already penalized by existing law, the following shall
constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx..................................xxx..................................xxx.
(e)....Causing any undue injury to any party,
including the Government, or giving any private
party any unwarranted benefits, advantage or
preference in the discharge of his official, judicial or
administrative functions through manifest partiality,
evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees
of offices or government corporations charged with
the grant of licenses or permits or other
concessions.
xxx..................................xxx..................................xxx.
The elements of the offense are: (1) that the accused are
public officers or private persons charged in conspiracy with
them; (2) that said public officers commit the prohibited acts
during the performance of their official duties or in relation to
their public positions; (3) that they cause undue injury to any
party, whether the Government or a private party; (4) that
such injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and (5) that the
public officers have acted with manifest partiality, evident
bad faith or gross inexcusable negligence.[9]
R.A. 3019, Section 3, paragraph (e), as amended, provides
as one of its elements that the public officer should have
acted by causing any undue injury to any party, including the
Government, or by giving any private party unwarranted
benefits, advantage or preference in the discharge of his
functions. The use of the disjunctive term "or" connotes that
either act qualifies as a violation of Section 3, paragraph (e),
or as aptly held in Santiago,[10] as two (2) different modes of
committing the offense. This does not however indicate that
each mode constitutes a distinct offense, but rather, that an
accused may be charged under either mode or under
both.[11]
In the instant case, we find that petitioner, in issuing the
certification, did not cause any undue injury to the
Government. She also did not give unwarranted benefits,
advantage or preference to Tanduay. Neither did petitioner
display manifest partiality to Tanduay nor act with evident
bad faith or gross inexcusable negligence. Quite the
contrary, petitioners certification was against the interest of
Tanduay. It did not advocate the grant of its application for
tax credit. The certification can even be read as a
recommendation of denial of the application.
Petitioner further argues that her conviction was merely
based on her alleged failure to identify with certainty in her
certification the kinds of taxes paid by Tanduay and to
indicate what the TNCs stand for, which acts were different
from those described in the Information under which she was
charged. This, she claims, violated her constitutional right to
due process and to be informed of the nature and cause of
the accusation against her.
Information which constitute corrupt practices. Her conviction
must, therefore, be set aside. For conviction must rest no
less than on hard evidence showing that the accused, with
moral certainty, is guilty of the crime charged. Short of these
constitutional mandate and statutory safeguard --- that a
person is presumed innocent until the contrary is proved ---
the Court is then left without discretion and is duty bound to
render a judgment of acquittal.[13]

It is well-settled that an accused cannot be convicted of an WHEREFORE, the Motion for Reconsideration is
offense unless it is clearly charged in the complaint or GRANTED. This Courts Decision dated September 30, 1999
information. Constitutionally, he has a right to be informed of is RECONSIDERED and SET ASIDE. Petitioner is
the nature and cause of the accusation against him. To ACQUITTED of the charge against her.
convict him of an offense other than that charged in the
complaint or information would be a violation of this SO ORDERED.
constitutional right.[12] In the case at bar, we find merit in
petitioners contention that the acts for which she was Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo,
convicted are different from those alleged in the Information. JJ., concur.
More importantly, as we have discussed above, petitioners
act of issuing the certification did not constitute corrupt
practices as defined in Section 3 (e) of R.A. 3019.

Employees of the BIR were expected to know what the Republic of the Philippines
TNCs stand for. If they do not, there is a "Handbook of Tax Supreme Court
Numeric Code of Revenue Sources" which they can consult. Manila
With this, petitioner should not be required to describe in
words the kinds of tax for which each TNC used stands for. SECOND DIVISION
Precisely, the purpose of introducing the use of tax numeric
codes in the Bureau was to do away with these descriptive
words, in order to expedite and facilitate communications ARTEMIO VILLAREAL, G.R. No. 151258
among the different divisions therein. We find that petitioners Petitioner,
omission to indicate what kind of taxes TNC Nos. 3011-0001
and 0000-0000 stand for was not a criminal act. Applicable - versus -
here is the familiar maxim in criminal law: Nullum crimen
nulla poena sine lege. There is no crime where there is no
law punishing it. PEOPLE OF THE PHILIPPINES,
Respondent.
x-------------------------x
On the whole, therefore, we find that petitioner was not guilty
PEOPLE OF THE PHILIPPINES, G.R. No. 154954
of any criminal offense. The prosecutions evidence failed to Petitioner,
establish that petitioner committed the acts described in the
 MANUEL LORENZO ESCALONA II, MARCUS
- versus - JOEL CAPELLAN RAMOS, CRISANTO CRUZ CARPIO, J., Chairperson,
SARUCA, JR., and ANSELMO ADRIANO, BRION,
Respondents. PEREZ,
THE HONORABLE COURT OF APPEALS, SERENO, and
ANTONIO MARIANO ALMEDA, DALMACIO REYES, JJ.
LIM, JR., JUNEL ANTHONY AMA, ERNESTO
JOSE MONTECILLO, VINCENT TECSON, Promulgated:
ANTONIO GENERAL, SANTIAGO RANADA III, February 1, 2012
NELSON VICTORINO, JAIME MARIA FLORES
II, ZOSIMO MENDOZA, MICHAEL MUSNGI,
VICENTE VERDADERO, ETIENNE GUERRERO, x--------------------------------------------------x
JUDE FERNANDEZ, AMANTE PURISIMA II,
EULOGIO SABBAN, PERCIVAL BRIGOLA,
PAUL ANGELO SANTOS, JONAS KARL B. DECISION
PEREZ, RENATO BANTUG, JR., ADEL ABAS,
JOSEPH LLEDO, and RONAN DE GUZMAN, SERENO, J.:
Respondents.
x-------------------------x The public outrage over the death of Leonardo Lenny Villa the victim in this
case on 10 February 1991 led to a very strong clamor to put an end to
FIDELITO DIZON,
Petitioner, hazing.[1] Due in large part to the brave efforts of his mother, petitioner
Gerarda Villa, groups were organized, condemning his senseless and tragic
death. This widespread condemnation prompted Congress to enact a special
- versus -
law, which became effective in 1995, that would criminalize hazing. [2] The
G.R. No. 155101 intent of the law was to discourage members from making hazing a
PEOPLE OF THE PHILIPPINES, requirement for joining their sorority, fraternity, organization, or
Respondent.
x-------------------------x association.[3] Moreover, the law was meant to counteract the exculpatory
implications of consent and initial innocent act in the conduct of initiation
GERARDA H. VILLA, rites by making the mere act of hazing punishable or mala prohibita.[4]
Petitioner,
Sadly, the Lenny Villa tragedy did not discourage hazing activities in the
- versus - country.[5] Within a year of his death, six more cases of hazing-related deaths
emerged those of Frederick Cahiyang of the University of Visayas in Cebu;
G.R. Nos. 178057 & Raul
178080
Camaligan of San Beda College; Felipe Narne of Pamantasan ng
Present: Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training
Center; Joselito Mangga of the Philippine Merchant Marine Institute; and
Joselito Hernandez of the University of the Philippines in Baguio City. [6]
Although courts must not remain indifferent to public sentiments, in
this case the general condemnation of a hazing-related death, they are still
bound to observe a fundamental principle in our criminal justice system [N]o
act constitutes a crime unless it is made so by law.[7] Nullum crimen, nulla
poena sine lege. Even if an act is viewed by a large section of the populace
as immoral or injurious, it cannot be considered a crime, absent any law
prohibiting its commission. As interpreters of the law, judges are called upon
to set aside emotion, to resist being swayed by strong public sentiments, and
to rule strictly based on the elements of the offense and the facts allowed in
evidence.
Before the Court are the consolidated cases docketed as G.R. No.
151258 (Villareal v. People), G.R. No. 154954 (People v. Court of
Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and
178080 (Villa v. Escalona).
FACTS
The pertinent facts, as determined by the Court
Appeals (CA)[8] and the trial court,[9] are as follows:
In February 1991, seven freshmen law students of the Ateneo de
Manila University School of Law signified their intention to join the Aquila
Legis Juris Fraternity (Aquila Fraternity). They were Caesar Bogs Asuncion,
Samuel Sam Belleza, Bienvenido Bien Marquez III, Roberto Francis Bert
Navera, Geronimo Randy Recinto, Felix Sy, Jr., and Leonardo Lenny Villa
(neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law
School. They all proceeded to Rufos Restaurant to have dinner. Afterwards,
they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were
informed that there would be physical beatings, and that they could quit at
any time. Their initiation rites were scheduled to last for three days. After
their briefing, they were brought to the Almeda Compound in Caloocan City
for the commencement of their initiation.
Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes alighted from
the van and walked towards the pelota court of the Almeda compound, some
of the Aquilans delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan initiation rites. These rites included
the Indian Run, which required the neophytes to run a gauntlet of two parallel
rows of Aquilans, each row delivering blows to the neophytes; the Bicol
Express, which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked,
jumped, or ran over their legs; the Rounds, in which the neophytes were held
at the back of their pants by the auxiliaries (the Aquilans charged with the
of
duty of lending assistance to neophytes during initiation rites), while the latter
were being hit with fist blows on their arms or with knee blows on their thighs
by two Aquilans; and the Auxies Privilege Round, in which the auxiliaries
were given the opportunity to inflict physical pain on the neophytes. During
this time, the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day 9 February 1991 the neophytes
were made to present comic plays and to play rough basketball. They were
also required to memorize and recite the Aquila Fraternitys principles.
Whenever they would give a wrong answer, they would be hit on their arms In Criminal Case No. C-38340(91)
or legs. Late in the afternoon, the Aquilans revived the initiation rites proper 1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)
and proceeded to torment them physically and psychologically. The 3. Efren de Leon (De Leon)
neophytes were subjected to the same manner of hazing that they endured on 4. Vincent Tecson (Tecson)
the first day of initiation. After a few hours, the initiation for the day officially 5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
ended.
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
After a while, accused non-resident or alumni fraternity 9. Eulogio Sabban (Sabban)
members[10] Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) 10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
demanded that the rites be reopened. The head of initiation rites, Nelson
12. Michael Musngi (Musngi)
Victorino (Victorino), initially refused. Upon the insistence of Dizon and 13. Jonas Karl Perez (Perez)
Villareal, however, he reopened the initiation rites. The fraternity members, 14. Paul Angelo Santos (Santos)
including Dizon and Villareal, then subjected the neophytes to paddling and 15. Ronan de Guzman (De Guzman)
16. Antonio General (General)
to additional rounds of physical pain. Lenny received several paddle blows, 17. Jaime Maria Flores II (Flores)
one of which was so strong it sent him sprawling to the ground. The 18. Dalmacio Lim, Jr. (Lim)
neophytes heard him complaining of intense pain and difficulty in 19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
breathing. After their last session of physical beatings, Lenny could no longer 21. Zosimo Mendoza (Mendoza)
walk. He had to be carried by the auxiliaries to the carport. Again, the 22. Vicente Verdadero (Verdadero)
initiation for the day was officially ended, and the neophytes started eating 23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
dinner. They then slept at the carport.
25. Adel Abas (Abas)

After an hour of sleep, the neophytes were suddenly roused by

Lennys shivering and incoherent mumblings. Initially, Villareal and Dizon 26. Percival Brigola (Brigola)
dismissed these rumblings, as they thought he was just overacting. When they
realized, though, that Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and helped him through a In Criminal Case No. C-38340
sleeping bag to keep him warm. When his condition worsened, the Aquilans 1. Manuel Escalona II (Escalona)
rushed him to the hospital. Lenny was pronounced dead on arrival. 2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
Consequently, a criminal case for homicide was filed against the 5. Reynaldo Concepcion (Concepcion)
following 35 Aquilans: 6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
 8. Stanley Fernandez (S. Fernandez) 2. Four of the accused-appellants Vincent Tecson, Junel
9. Noel Cabangon (Cabangon)
Anthony Ama, Antonio Mariano Almeda, and Renato
Bantug, Jr. (Tecson et al.) were found guilty of the crime
Twenty-six of the accused Aquilans in Criminal Case No. C- of slight physical injuries and sentenced to 20 days
38340(91) were jointly tried. [11]
On the other hand, the trial against the of arresto menor. They were also ordered to jointly pay the
remaining nine accused in Criminal Case No. C-38340 was held in abeyance heirs of the victim the sum of 30,000 as indemnity.
due to certain matters that had to be resolved first.[12]

On 8 November 1993, the trial court rendered judgment in Criminal 3. Two of the accused-appellants Fidelito

Case No. C-38340(91), holding the 26 accused guilty beyond reasonable Dizon and Artemio Villareal were found guilty beyond

doubt of the crime of homicide, penalized with reclusion temporal under reasonable doubt of the crime of homicide under Article 249

Article 249 of the Revised Penal Code.[13] A few weeks after the trial court of the Revised Penal Code. Having found no mitigating or

rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340 aggravating circumstance, the CA sentenced them to an

against the remaining nine accused commenced anew.[14] indeterminate sentence of 10 years of prision mayor to 17
years of reclusion temporal. They were also ordered to
On 10 January 2002, the CA in (CA-G.R. No. 15520) [15]
set aside the indemnify, jointly and severally, the heirs of Lenny Villa in
finding of conspiracy by the trial court in Criminal Case No. C-38340(91) the sum of 50,000 and to pay the additional amount of
and modified the criminal liability of each of the accused according to 1,000,000 by way of moral damages.
individual participation. Accused De Leon had by then passed away, so the
following Decision applied only to the remaining 25 accused, viz:
On 5 August 2002, the trial court in Criminal Case No. 38340
1. Nineteen of the accused-appellants Victorino, Sabban,
dismissed the charge against accused Concepcion on the ground of violation
Lledo, Guerrero, Musngi, Perez, De Guzman, Santos,
of his right to speedy trial.[16] Meanwhile, on different dates between the
General, Flores, Lim, Montecillo, Ranada, Mendoza,
years 2003 and 2005, the trial court denied the respective Motions to Dismiss
Verdadero, Purisima, Fernandez, Abas, and Brigola
of accused Escalona, Ramos, Saruca, and Adriano.[17] On 25 October 2006,
(Victorino et al.) were acquitted, as their individual guilt
the CA in CA-G.R. SP Nos. 89060 & 90153[18] reversed the trial courts
was not established by proof beyond reasonable doubt.
Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and
Adriano on the basis of violation of their right to speedy trial. [19]
 From the aforementioned Decisions, the five (5) consolidated
Petitions were individually brought before this Court.
G.R. No. 151258 Villareal v. People
The instant case refers to accused Villareals Petition for Review
on Certiorari under Rule 45. The Petition raises two reversible errors
allegedly committed by the CA in its Decision dated 10 January 2002 in CA-
G.R. No. 15520 first, denial of due process; and, second, conviction absent
proof beyond reasonable doubt.[20]
While the Petition was pending before this Court, counsel for
petitioner Villareal filed a Notice of Death of Party on 10 August 2011.
According to the Notice, petitioner Villareal died on 13 March 2011. Counsel
thus asserts that the subject matter of the Petition previously filed by
petitioner does not survive the death of the accused.
G.R. No. 155101 Dizon v. People
Accused Dizon filed a Rule 45 Petition for Review on Certiorari,
questioning the CAs Decision dated 10 January 2002 and Resolution dated
30 August 2002 in CA-G.R. No. 15520.[21] Petitioner sets forth two main
issues first, that he was denied due process when the CA sustained the trial
courts forfeiture of his right to present evidence; and, second, that he was
deprived of due process when the CA did not apply to him the same ratio
decidendi that served as basis of acquittal of the other accused.[22]
As regards the first issue, the trial court made a ruling, which
forfeited Dizons right to present evidence during trial. The trial court
expected Dizon to present evidence on an earlier date since a co-accused,
Antonio General, no longer presented separate evidence during trial.
According to Dizon, his right should not have been considered as waived
because he was justified in asking for a postponement. He argues that he did
not ask for a resetting of any of the hearing dates and in fact insisted that he
was ready to present
evidence on the original pre-assigned schedule, and not on an earlier hearing
date.
Regarding the second issue, petitioner contends that he should have
likewise been acquitted, like the other accused, since his acts were also part
of the traditional initiation rites and were not tainted by evil motives. [23] He
claims that the additional paddling session was part of the official activity of
the fraternity. He also points out that one of the neophytes admitted that the
chairperson of the initiation rites decided that [Lenny] was fit enough to
undergo the initiation so Mr. Villareal proceeded to do the
[24]
paddling. Further, petitioner echoes the argument of the Solicitor General
that the individual blows inflicted by Dizon and Villareal could not have
resulted in Lennys death.[25] The Solicitor General purportedly averred that,
on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could
not be considered fatal if taken individually, but if taken collectively, the
result is the violent death of the victim.[26]
Petitioner then counters the finding of the CA that he was motivated
by ill will. He claims that Lennys father could not have stolen the parking
space of Dizons father, since the latter did not have a car, and their fathers
did not work in the same place or office. Revenge for the loss of the parking
space was the alleged ill motive of Dizon. According to petitioner, his
utterances regarding a stolen parking space were only part of the
psychological initiation. He then cites the testimony of Lennys co-neophyte
witness Marquez who admitted knowing it was not true and that he was just
making it up.[27]
 Further, petitioner argues that his alleged motivation of ill will was
negated by his show of concern for Villa after the initiation rites. Dizon
alludes to the testimony of one of the neophytes, who mentioned that the
former had kicked the leg of the neophyte and told him to switch places with
Lenny to prevent the latters chills. When the chills did not stop, Dizon,
together with Victorino, helped Lenny through a sleeping bag and made him
sit on a chair. According to petitioner, his alleged ill motivation is
contradicted by his manifestation of compassion and concern for the victims
well-being.
G.R. No. 154954 People v. Court of Appeals
This Petition for Certiorari under Rule 65 seeks the reversal of the CAs
Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-
G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and convicted 4
(Tecson et al.) of the accused Aquilans of the lesser crime of slight physical
injuries.[28] According to the Solicitor General, the CA erred in holding that
there could have been no conspiracy to commit hazing, as hazing or fraternity
initiation had not yet been criminalized at the time Lenny died.
In the alternative, petitioner claims that the ruling of the trial court
should have been upheld, inasmuch as it found that there was conspiracy to
inflict physical injuries on Lenny. Since the injuries led to the victims death,
petitioner posits that the accused Aquilans are criminally liable for the
resulting crime of homicide, pursuant to Article 4 of the Revised Penal
Code.[29] The said article provides: Criminal liability shall be incurred [b]y
any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
Petitioner also argues that the rule on double jeopardy is
inapplicable. According to the Solicitor General, the CA acted with grave
abuse of discretion, amounting to lack or excess of jurisdiction, in setting
aside the trial courts finding of conspiracy and in ruling that the criminal
liability of
all the accused must be based on their individual participation in the
commission of the crime.
G.R. Nos. 178057 and 178080 Villa v. Escalona
Petitioner Villa filed the instant Petition for Review on Certiorari,
praying for the reversal of the CAs Decision dated 25 October 2006 and
Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and
90153.[30] The Petition involves the dismissal of the criminal charge filed
against Escalona, Ramos, Saruca, and Adriano.
Due to several pending incidents, the trial court ordered a separate
trial for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De
Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to
commence after proceedings against the 26 other accused in Criminal Case
No. C-38340(91) shall have terminated. On 8 November 1993, the trial court
found the 26 accused guilty beyond reasonable doubt. As a result, the
proceedings in Criminal Case No. C-38340 involving the nine other co-
accused recommenced on 29 November 1993. For various reasons, the initial
trial of the case did not commence until 28 March 2005, or almost 12 years
after the arraignment of the nine accused.
Petitioner Villa assails the CAs dismissal of the criminal case involving 4 of
the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues
that the accused failed to assert their right to speedy trial within a reasonable
period of time. She also points out that the prosecution cannot be faulted for
the delay, as the original records and the required evidence were not at its
disposal, but were still in the appellate court.
We resolve herein the various issues that we group into five. In a Notice dated 26 September 2011 and while the Petition was
pending resolution, this Court took note of counsel for petitioners Notice of
Death of Party.

ISSUES According to Article 89(1) of the Revised Penal Code, criminal

liability for personal penalties is totally extinguished by the death of the
1. Whether the forfeiture of petitioner Dizons right to present evidence convict. In contrast, criminal liability for pecuniary penalties is extinguished
constitutes denial of due process; if the offender dies prior to final judgment. The term personal penalties refers
to the service of personal or imprisonment penalties, [31] while the term
2. Whether the CA committed grave abuse of discretion, amounting to lack
pecuniary penalties (las pecuniarias) refers to fines and costs,[32] including
or excess of jurisdiction when it dismissed the case against Escalona,
civil liability predicated on the criminal offense complained of (i.e., civil
Ramos, Saruca, and Adriano for violation of the right of the accused to
liability ex delicto).[33] However, civil liability based on a source of obligation
speedy trial;
other than the delict survives the death of the accused and is recoverable
through a separate civil action.[34]
3. Whether the CA committed grave abuse of discretion, amounting to lack
or excess of jurisdiction, when it set aside the finding of conspiracy by
Thus, we hold that the death of petitioner Villareal extinguished his
the trial court and adjudicated the liability of each accused according to
criminal liability for both personal and pecuniary penalties, including his civil
individual participation;
liability directly arising from the delict complained of. Consequently, his
Petition is hereby dismissed, and the criminal case against him deemed closed
4. Whether accused Dizon is guilty of homicide; and
and terminated.
5. Whether the CA committed grave abuse of discretion when it
pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight
G.R. No. 155101 (Dizon v. People)
physical injuries.
In an Order dated 28 July 1993, the trial court set the dates for the
DISCUSSION reception of evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of
September; and the 5th and 12 of October 1993.[35] The Order likewise stated
Resolution on Preliminary Matters that it will not entertain any postponement and that all the accused who have
not yet presented their respective evidence should be ready at all times down
G.R. No. 151258 Villareal v. People
the line, with their evidence on all said dates. Failure on their part to present
evidence when required shall therefore be construed as waiver to present
evidence.[36]
 However, on 19 August 1993, counsel for another accused
manifested in open court that his client Antonio General would no longer
present separate evidence. Instead, the counsel would adopt the testimonial
[37]
evidence of the other accused who had already testified. Because of this
development and pursuant to the trial courts Order that the parties should be
ready at all times down the line, the trial court expected Dizon to present
evidence on the next trial date 25 August 1993 instead of his originally
assigned dates. The original dates were supposed to start two weeks later, or
on 8 September 1993.[38] Counsel for accused Dizon was not able to present
evidence on the accelerated date. To address the situation, counsel filed
a Constancia on 25 August 1993, alleging that he had to appear in a
previously scheduled case, and that he would be ready to present evidence on
the dates originally assigned to his clients.[39] The trial court denied the
Manifestation on the same date and treated the Constancia as a motion for
postponement, in violation of the three-day-notice rule under the Rules of
Court.[40] Consequently, the trial court ruled that the failure of Dizon to
present evidence amounted to a waiver of that right.[41]
Accused-petitioner Dizon thus argues that he was deprived of due
process of law when the trial court forfeited his right to present evidence.
According to him, the postponement of the 25 August 1993 hearing should
have been considered justified, since his original pre-assigned trial dates were
not supposed to start until 8 September 1993, when he was scheduled to
present evidence. He posits that he was ready to present evidence on the dates
assigned to him. He also points out that he did not ask for a resetting of any
of the said hearing dates; that he in fact insisted on being allowed to present
evidence on the dates fixed by the trial court. Thus, he contends that the trial
court erred in accelerating the schedule of presentation of evidence, thereby
invalidating the finding of his guilt.
The right of the accused to present evidence is guaranteed by no less
than the Constitution itself.[42] Article III, Section 14(2) thereof, provides
that in all criminal prosecutions, the accused shall enjoy the right to be
heard by himself and counsel This constitutional right includes the right to
present evidence in ones defense,[43] as well as the right to be present and
defend oneself in person at every stage of the proceedings. [44]
In Crisostomo v. Sandiganbayan,[45] the Sandiganbayan set the
hearing of the defenses presentation of evidence for 21, 22 and 23 June 1995.
The 21 June 1995 hearing was cancelled due to lack of quorum in the regular
membership of the Sandiganbayans Second Division and upon the agreement
of the parties. The hearing was reset for the next day, 22 June 1995, but
Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very
same day, issued an Order directing the issuance of a warrant for the arrest of
Crisostomo and the confiscation of his surety bond. The Order further
declared that he had waived his right to present evidence because of his
nonappearance at yesterdays and todays scheduled hearings. In ruling against
the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c),
Rule 115 of the Rules of Court, Crisostomos non-
appearance during the 22 June 1995 trial was merely a
waiver of his right to be present for trial on such date
only and not for the succeeding trial dates
xxxxxxxxx
Moreover, Crisostomos absence on the 22 June
1995 hearing should not have been deemed as a waiver
of his right to present evidence. While constitutional
rights may be waived, such waiver must be clear and
must be coupled with an actual intention to relinquish
the right. Crisostomo did not voluntarily waive in person
or even through his counsel the right to present evidence.
The Sandiganbayan imposed the waiver due to the
 agreement of the prosecution, Calingayan, and
Calingayan's counsel.
In criminal cases where the imposable penalty
may be death, as in the present case, the court is called
upon to see to it that the accused is personally made
aware of the consequences of a waiver of the right to
present evidence. In fact, it is not enough that the
accused is simply warned of the consequences of
another failure to attend the succeeding hearings. The
court must first explain to the accused personally in clear
terms the exact nature and consequences of a waiver.
Crisostomo was not even forewarned. The Sandiganbayan
simply went ahead to deprive Crisostomo of his right to
present evidence without even allowing Crisostomo to
explain his absence on the 22 June 1995 hearing.
Clearly, the waiver of the right to present
evidence in a criminal case involving a grave penalty is
not assumed and taken lightly. The presence of the
accused and his counsel is indispensable so that the court
could personally conduct a searching inquiry into the
waiver x x x.[46] (Emphasis supplied)
The trial court should not have deemed the failure of petitioner to
present evidence on 25 August 1993 as a waiver of his right to present
evidence. On the contrary, it should have considered the excuse of counsel
justified, especially since counsel for another accused General had made a
last-minute adoption of testimonial evidence that freed up the succeeding trial
dates; and since Dizon was not scheduled to testify until two weeks later. At
any rate, the trial court pre-assigned five hearing dates for the reception of
evidence. If it really wanted to impose its Order strictly, the most it could
have done was to forfeit one out of the five days set for Dizons testimonial
evidence. Stripping the accused of all his pre-assigned trial dates constitutes
a patent denial of the constitutionally guaranteed right to due process.
Nevertheless, as in the case of an improvident guilty plea, an invalid
waiver of the right to present evidence and be heard does not per se work to
vacate a finding of guilt in the criminal case or to enforce an automatic
remand of the case to the trial court.[47] In People v. Bodoso, we ruled that
where facts have adequately been represented in a criminal case, and no
procedural unfairness or irregularity has prejudiced either the prosecution or
the defense as a result of the invalid waiver, the rule is that a guilty verdict
may nevertheless be upheld if the judgment is supported beyond reasonable
doubt by the evidence on record.[48]
We do not see any material inadequacy in the relevant facts on
record to resolve the case at bar. Neither can we see any procedural unfairness
or irregularity that would substantially prejudice either the prosecution or the
defense as a result of the invalid waiver. In fact, the arguments set forth by
accused Dizon in his Petition corroborate the material facts relevant to decide
the matter. Instead, what he is really contesting in his Petition is the
application of the law to the facts by the trial court and the CA. Petitioner
Dizon admits direct participation in the hazing of Lenny Villa by alleging in
his Petition that all actions of the petitioner were part of the traditional rites,
and that the alleged extension of the initiation rites was not outside the official
activity of the fraternity.[49] He even argues that Dizon did not request for the
extension and he participated only after the activity was sanctioned.[50]
For one reason or another, the case has been passed or turned over
from one judge or justice to another at the trial court, at the CA, and even at
the Supreme Court. Remanding the case for the reception of the evidence of
petitioner Dizon would only inflict further injustice on the parties. This case
has been going on for almost two decades. Its resolution is long overdue.
Since the key facts necessary to decide the case have already been
determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)
Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and
Adriano should not have been dismissed, since they failed to assert their right
to speedy trial within a reasonable period of time. She points out that the
accused failed to raise a protest during the dormancy of the criminal case
against them, and that they asserted their right only after the trial court had
dismissed the case against their co-accused Concepcion. Petitioner also
emphasizes that the trial court denied the respective Motions to Dismiss filed
by Saruca, Escalona, Ramos, and Adriano, because it found that the
prosecution could not be faulted for the delay in the movement of this case
when the original records and the evidence it may require were not at its
disposal as these were in the Court of Appeals.[51]
The right of the accused to a speedy trial has been enshrined in
Sections 14(2) and 16, Article III of the 1987 Constitution. [52] This right
requires that there be a trial free from vexatious, capricious or oppressive
delays.[53] The right is deemed violated when the proceeding is attended with
unjustified postponements of trial, or when a long period of time is allowed
to elapse without the case being tried and for no cause or justifiable
motive.[54] In determining the right of the accused to speedy trial, courts
should do more than a mathematical computation of the number of
postponements of the scheduled hearings of the case. [55] The conduct of both
[56]
the prosecution and the defense must be weighed. Also to be considered
are factors such as the length of delay, the assertion or non-assertion of the
right, and the prejudice wrought upon the defendant. [57]
We have consistently ruled in a long line of cases that a dismissal of
the case pursuant to the right of the accused to speedy trial is tantamount to
acquittal.[58] As a consequence, an appeal or a reconsideration of the dismissal
would amount to a violation of the principle of double jeopardy. [59] As we
have previously discussed, however, where the dismissal of the case is
capricious, certiorari lies.[60] The rule on double jeopardy is not triggered
when a petition challenges the validity of the order of dismissal instead of the
correctness thereof.[61] Rather, grave abuse of discretion amounts to lack of
jurisdiction, and lack of jurisdiction prevents double jeopardy from
attaching.[62]
We do not see grave abuse of discretion in the CAs dismissal of the
case against accused Escalona, Ramos, Saruca, and Adriano on the basis of
the violation of their right to speedy trial. The court held thus:
An examination of the procedural history of this
case would reveal that the following factors contributed to
the slow progress of the proceedings in the case below:
xxxxxxxxx
5) The fact that the records of the case were
elevated to the Court of Appeals and the
prosecutions failure to comply with the order
of the court a quo requiring them to secure
certified true copies of the same.
xxxxxxxxx
While we are prepared to concede that some of the
foregoing factors that contributed to the delay of the trial
of the petitioners are justifiable, We nonetheless hold that
their right to speedy trial has been utterly violated in this
case x x x.
xxxxxxxxx
 [T]he absence of the records in the trial court [was] due
to the fact that the records of the case were elevated to the
Court of Appeals, and the prosecutions failure to
comply with the order of the court a quo requiring it to
secure certified true copies of the same. What is glaring
from the records is the fact that as early as September 21,
1995, the court a quo already issued an Order requiring the
prosecution, through the Department of Justice, to secure
the complete records of the case from the Court of Appeals.
The prosecution did not comply with the said Order as in
fact, the same directive was repeated by the court a quo in
an Order dated December 27, 1995. Still, there was no
compliance on the part of the prosecution. It is not stated
when such order was complied with. It appears, however,
that even until August 5, 2002, the said records were still
not at the disposal of the trial court because the lack of
it was made the basis of the said court in granting the
motion to dismiss filed by co-accused Concepcion x x x.
xxxxxxxxx
It is likewise noticeable that from December 27,
1995, until August 5, 2002, or for a period of almost
seven years, there was no action at all on the part of the
court a quo. Except for the pleadings filed by both the
prosecution and the petitioners, the latest of which was
on January 29, 1996, followed by petitioner Sarucas
motion to set case for trial on August 17, 1998 which the
court did not act upon, the case remained dormant for a
considerable length of time. This prolonged inactivity
whatsoever is precisely the kind of delay that the
constitution frowns upon x x x.[63] (Emphasis supplied)
This Court points out that on 10 January 1992, the final amended Information
was filed against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano,
Cabangon, Concepcion, and De Vera.[64] On 29 November 1993, they were
all arraigned.[65]Unfortunately, the initial trial of the case did not commence
until 28 March 2005 or almost 12 years after arraignment. [66]
As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained
interval or inactivity of the Sandiganbayan for close to five years since the
arraignment of the accused amounts to an unreasonable delay in the
disposition of cases a clear violation of the right of the accused to a speedy
disposition of cases.[67] Thus, we held:
The delay in this case measures up to the
unreasonableness of the delay in the disposition of cases
in Angchangco, Jr. vs. Ombudsman, where the Court found
the delay of six years by the Ombudsman in resolving
the criminal complaints to be violative of the
constitutionally guaranteed right to a speedy
disposition of cases; similarly, in Roque vs. Office of the
Ombudsman, where the Court held that the delay of almost
six years disregarded the Ombudsman's duty to act
promptly on complaints before him; and in Cervantes vs.
Sandiganbayan, where the Court held that the
Sandiganbayan gravely abused its discretion in not
quashing the information which was filed six years after
the initiatory complaint was filed and thereby
depriving petitioner of his right to a speedy disposition
of the case. So it must be in the instant case, where the
reinvestigation by the Ombudsman has dragged on for
a decade already.[68] (Emphasis supplied)
From the foregoing principles, we affirm the ruling of the CA
in CA-G.R. SP No. 89060 that accused Escalona et al.s right to speedy trial
was violated. Since there is nothing in the records that would show that the
subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and
De Vera, the effects of this ruling shall be limited to accused Escalona,
Ramos, Saruca, and Adriano.
G.R. No. 154954 (People v. Court of Appeals)
The rule on double jeopardy is one of the pillars of our criminal justice
system. It dictates that when a person is charged with an offense, and the case
is terminated either by acquittal or conviction or in any other manner without
the consent of the accused the accused cannot again be charged with the same
or an identical offense.[69] This principle is founded upon the law of reason,
justice and conscience.[70] It is embodied in the civil law maxim non bis in
idem found in the common law of England and undoubtedly in every system
of jurisprudence.[71] It found expression in the Spanish Law, in the
Constitution of the United States, and in our own Constitution as one of the
fundamental rights of the citizen,[72] viz:
Article III Bill of Rights
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same
act.
Rule 117, Section 7 of the Rules of Court, which implements this
particular constitutional right, provides as follows:[73]
SEC. 7. Former conviction or acquittal; double jeopardy.
When an accused has been convicted or acquitted, or the
case against him dismissed or otherwise terminated
without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal
of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged
in the former complaint or information.
The rule on double jeopardy thus prohibits the state from appealing
the judgment in order to reverse the acquittal or to increase the penalty
imposed either through a regular appeal under Rule 41 of the Rules of Court
or through an appeal by certiorari on pure questions of law under Rule 45 of
the same Rules.[74] The requisites for invoking double jeopardy are the
following: (a) there is a valid complaint or information; (b) it is filed before
a competent court; (c) the defendant pleaded to the charge; and (d) the
defendant was acquitted or convicted, or the case against him or her was
dismissed or otherwise terminated without the defendants express consent.[75]
As we have reiterated in People v. Court of Appeals and Galicia, [a]
verdict of acquittal is immediately final and a reexamination of the merits of
such acquittal, even in the appellate courts, will put the accused in jeopardy
for the same offense. The finality-of-acquittal doctrine has several avowed
purposes. Primarily, it prevents the State from using its criminal processes as
an instrument of harassment to wear out the accused by a multitude of cases
with accumulated trials. It also serves the additional purpose of precluding
the State, following an acquittal, from successively retrying the defendant in
the hope of securing a conviction. And finally, it prevents the State, following
conviction, from retrying the defendant again in the hope of securing a greater
penalty.[76] We further stressed that an acquitted defendant is entitled to the
right of repose as a direct consequence of the finality of his acquittal.[77]
This prohibition, however, is not absolute. The state may challenge
the lower courts acquittal of the accused or the imposition of a lower penalty
on the latter in the following recognized exceptions: (1) where the
prosecution is deprived of a fair opportunity to prosecute and prove its case,
tantamount to a deprivation of due process;[78] (2) where there is a finding of
mistrial;[79] or (3) where there has been a grave abuse of discretion.[80]
The third instance refers to this Courts judicial power under Rule 65
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.[81] Here, the party asking for the review
must show the presence of a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction; a patent and gross abuse of discretion
amounting to an evasion of a positive duty or to a virtual refusal to perform
a duty imposed by law or to act in contemplation of law; an exercise of power
in an arbitrary and despotic manner by reason of passion and hostility; [82] or
a blatant abuse of authority to a point so grave and so severe as to deprive the
court of its very power to dispense justice.[83] In such an event, the accused
cannot be considered to be at risk of double jeopardy. [84]
The Solicitor General filed a Rule 65 Petition for Certiorari, which
seeks the reversal of (1) the acquittal of Victorino et al. and (2) the conviction
of Tecson et al. for the lesser crime of slight physical injuries, both on the
basis of a misappreciation of facts and evidence. According to the Petition,
the decision of the Court of Appeals is not in accordance with law because
private complainant and petitioner were denied due process of law when the
public respondent completely ignored the a) Position Paper x x x b) the
Motion for Partial Reconsideration x x x and c) the petitioners Comment x x
x.[85] Allegedly, the CA ignored evidence when it adopted the theory of
individual responsibility; set aside the finding of conspiracy by the trial court;
and failed to apply Article 4 of the Revised Penal Code.[86] The Solicitor
General also assails the finding that the physical blows were inflicted only by
Dizon and Villareal, as well as the appreciation of Lenny Villas consent to
hazing.[87]
In our view, what the Petition seeks is that we reexamine, reassess,
and reweigh the probative value of the evidence presented by the
parties.[88] In People v. Maquiling, we held that grave abuse of discretion
cannot be attributed to a court simply because it allegedly misappreciated the
facts and the evidence.[89] Mere errors of judgment are correctible by an
appeal or a petition for review under Rule 45 of the Rules of Court, and not
by an application for a writ of certiorari.[90] Therefore, pursuant to the rule
on double jeopardy, we are constrained to deny the
Petition contra Victorino et al. the 19 acquitted fraternity members.
We, however, modify the assailed judgment as regards Tecson,
Ama, Almeda, and Bantug the four fraternity members convicted of slight
physical injuries.
Indeed, we have ruled in a line of cases that the rule on double
jeopardy similarly applies when the state seeks the imposition of a higher
penalty against the accused.[91] We have also recognized, however,
that certiorari may be used to correct an abusive judgment upon a clear
demonstration that the lower court blatantly abused its authority to a point so
grave as to deprive it of its very power to dispense justice.[92] The present case
is one of those instances of grave abuse of discretion.
 In imposing the penalty of slight physical injuries on Tecson, Ama, not die.[97] His injuries were not even serious.[98] Since Penesa involved a
Almeda, and Bantug, the CA reasoned thus: case in which the victim allegedly suffered physical injuries and not death,
the ruling cited by the CA was patently inapplicable.
Based on the medical findings, it would appear
that with the exclusion of the fatal wounds inflicted by
the accused Dizon and Villareal, the injuries sustained On the contrary, the CAs ultimate conclusion that Tecson, Ama,
by the victim as a result of the physical punishment
heaped on him were serious in nature. However,by Almeda, and Bantug were liable merely for slight physical injuries grossly
reason of the death of the victim, there can be no precise contradicts its own findings of fact. According to the court, the four accused
means to determine the duration of the incapacity or
the medical attendance required. To do so, at this stage were found to have inflicted more than the usual punishment undertaken
would be merely speculative. In a prosecution for this during such initiation rites on the person of Villa.[99] It then adopted the NBI
crime where the category of the offense and the severity of
the penalty depend on the period of illness or incapacity for medico-legal officers findings that the antecedent cause of Lenny Villas death
labor, the length of this period must likewise be proved
was the multiple traumatic injuries he suffered from the initiation
beyond reasonable doubt in much the same manner as the
same act charged [People v. Codilla, CA-G.R. No. 4079- rites.[100] Considering that the CA found that the physical punishment
R, June 26, 1950]. And when proof of the said period is
absent, the crime committed should be deemed only as heaped on [Lenny Villa was] serious in nature,[101] it was patently
slight physical injuries [People v. De los Santos, CA, 59 erroneous for the court to limit the criminal liability to slight physical injuries,
O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such,
this Court is constrained to rule that the injuries inflicted which is a light felony.
by the appellants, Tecson, Ama, Almeda and Bantug, Jr.,
are only slight and not serious, in nature.[93] (Emphasis Article 4(1) of the Revised Penal Code dictates that the perpetrator
supplied and citations included)
shall be liable for the consequences of an act, even if its result is different
from that intended. Thus, once a person is found to have committed an initial
The appellate court relied on our ruling in People v. Penesa[94] in
felonious act, such as the unlawful infliction of physical injuries that results
finding that the four accused should be held guilty only of slight physical
in the death of the victim, courts are required to automatically apply the legal
injuries. According to the CA, because of the death of the victim, there can
framework governing the destruction of life. This rule is mandatory, and not
be no precise means to determine the duration of the incapacity or medical
subject to discretion.
attendance required.[95] The reliance on Penesa was utterly misplaced. A
review of that case would reveal that the accused therein was guilty merely
The CAs application of the legal framework governing physical
of slight physical injuries, because the victims injuries neither caused
injuries punished under Articles 262 to 266 for intentional felonies and
[96]
incapacity for labor nor required medical attendance. Furthermore, he did
Article 365 for culpable felonies is therefore tantamount to a whimsical,
capricious, and abusive exercise of judgment amounting to lack of
jurisdiction. According to the Revised Penal Code, the mandatory and legally
imposable penalty in case the victim dies should be based on the framework
governing the destruction of the life of a person, punished under Articles 246
to 261 for intentional felonies and Article 365 for culpable felonies, and not
under the aforementioned provisions. We emphasize that these two types of
felonies are distinct from and legally inconsistent with each other, in that the
accused cannot be held criminally liable for physical injuries when actual
death occurs.[102]
Attributing criminal liability solely to Villareal and Dizon as if only
their acts, in and of themselves, caused the death of Lenny Villa is contrary
to the CAs own findings. From proof that the death of the victim was the
cumulative effect of the multiple injuries he suffered, [103] the only logical
conclusion is that criminal responsibility should redound to all those who
have been proven to have directly participated in the infliction of physical
injuries on Lenny. The accumulation of bruising on his body caused him to
suffer cardiac arrest. Accordingly, we find that the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in finding
Tecson, Ama, Almeda, and Bantug criminally liable for slight physical
injuries. As an allowable exception to the rule on double jeopardy, we
therefore give due course to the Petition in G.R. No. 154954.
Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time) punishable
as a crime, the intentional infliction of physical injuries on Villa was
nonetheless a felonious act under Articles 263 to 266 of the Revised Penal
Code. Thus, in ruling against the accused, the court a quo found that pursuant
to Article 4(1) of the Revised Penal Code, the accused fraternity members
were guilty of homicide, as it was the direct, natural and logical consequence
of the physical injuries they had intentionally inflicted.[104]
The CA modified the trial courts finding of criminal liability. It ruled
that there could have been no conspiracy since the neophytes, including
Lenny Villa, had knowingly consented to the conduct of hazing during their
initiation rites. The accused fraternity members, therefore, were liable only
for the consequences of their individual acts. Accordingly, 19 of the accused
Victorino et al. were acquitted; 4 of them Tecson et al. were found guilty of
slight physical injuries; and the remaining 2 Dizon and Villareal were found
guilty of homicide.
The issue at hand does not concern a typical criminal case wherein
the perpetrator clearly commits a felony in order to take revenge upon, to gain
advantage over, to harm maliciously, or to get even with, the victim. Rather,
the case involves an ex ante situation in which a man driven by his own desire
to join a society of men pledged to go through physically and psychologically
strenuous admission rituals, just so he could enter the fraternity. Thus, in
order to understand how our criminal laws apply to such situation absent the
Anti-Hazing Law, we deem it necessary to make a brief exposition on the
underlying concepts shaping intentional felonies, as well as on the nature of
physical and psychological initiations widely known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of
[105]
thought. The classical theory posits that a human person is essentially a
moral creature with an absolute free will to choose between good and
evil.[106] It asserts that one should only be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired.[107] The basic postulate
of the classical penal system is that humans are rational and calculating
beings who guide their actions with reference to the principles of pleasure
and pain.[108] They refrain from criminal acts if threatened with punishment
sufficient to cancel the hope of possible gain or advantage in committing the
crime.[109] Here, criminal liability is thus based on the free will and moral
blame of the actor.[110] The identity of mens rea defined as a guilty mind, a
guilty or wrongful purpose or criminal intent is the predominant
consideration.[111] Thus, it is not enough to do what the law prohibits.[112] In
order for an intentional felony to exist, it is necessary that the act be
committed by means of dolo or malice.[113]
The term dolo or malice is a complex idea involving the elements
[114]
of freedom, intelligence, and intent. The first element, freedom, refers to
an act done with deliberation and with power to choose between two
things.[115] The second element, intelligence, concerns the ability to
determine the morality of human acts, as well as the capacity to distinguish
[116]
between a licit and an illicit act. The last element, intent, involves an aim
[117]
or a determination to do a certain act.
The element of intent on which this Court shall focus is described as
the state of mind accompanying an act, especially a forbidden act.[118] It refers
to the purpose of the mind and the resolve with which a person
proceeds.[119] It does not refer to mere will, for the latter pertains to the act,
while intent concerns the result of the act.[120] While motive is the moving
power that impels one to action for a definite result, intent is the purpose of
[121]
using a particular means to produce the result. On the other hand, the term
felonious means, inter alia, malicious, villainous, and/or proceeding from an
evil heart or purpose.[122] With these elements taken together, the requirement
of intent in intentional felony must refer to malicious intent, which is a
vicious and malevolent state of mind accompanying a forbidden act. Stated
otherwise, intentional felony requires the existence of dolus malus that the
act or omission be done willfully, maliciously, with deliberate evil intent, and
with malice aforethought.[123] The maxim is actus non facit reum, nisi mens
sit rea a crime is not committed if the mind of the person performing the act
complained of is innocent.[124] As is required of the other elements of a
felony, the existence of malicious intent must be proven beyond reasonable
doubt.[125]
In turn, the existence of malicious intent is necessary in order for
conspiracy to attach. Article 8 of the Revised Penal Code which provides that
conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it
is to be interpreted to refer only to felonies committed by means of dolo or
malice. The phrase coming to an agreement connotes the existence of a
prefaced intent to cause injury to another, an element present only in
intentional felonies. In culpable felonies or criminal negligence, the injury
inflicted on another is unintentional, the wrong done being simply the result
of an act performed without malice or criminal design.[126] Here, a person
performs an initial lawful deed; however, due to negligence, imprudence,
lack of foresight, or lack of skill, the deed results in a wrongful act.[127] Verily,
a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is
inconsistent with the idea of a felony committed by means of culpa.[128]
The presence of an initial malicious intent to commit a felony is thus
a vital ingredient in establishing the commission of the intentional felony of
homicide.[129] Being mala in se, the felony of homicide requires the existence
of malice or dolo[130] immediately before or simultaneously with the
[131]
infliction of injuries. Intent to kill or animus interficendi cannot and
should not be inferred, unless there is proof beyond reasonable doubt of such
intent.[132] Furthermore, the victims death must not have been the product of
accident, natural cause, or suicide.[133] If death resulted from an act executed
without malice or criminal intent but with lack of foresight, carelessness, or
negligence the act must be qualified as reckless or simple negligence or
[134]
imprudence resulting in homicide.
Hazing and other forms of initiation rites
The notion of hazing is not a recent development in our
society.[135] It is said that, throughout history, hazing in some form or another
has been associated with organizations ranging from military groups to
indigenous tribes.[136] Some say that elements of hazing can be traced back to
the Middle Ages, during which new students who enrolled in European
universities worked as servants for upperclassmen.[137] It is believed that the
[138]
concept of hazing is rooted in ancient Greece, where young men recruited
into the military were tested with pain or challenged to demonstrate the limits
of their loyalty and to prepare the recruits for battle. [139] Modern fraternities
and sororities espouse some connection to these values of ancient Greek
civilization.[140] According to a scholar, this concept lends historical
legitimacy to a tradition or ritual whereby prospective members are asked to
prove their worthiness and loyalty to the organization in which they seek to
attain membership through hazing.[141]
Thus, it is said that in the Greek fraternity system, custom requires
a student wishing to join an organization to receive an invitation in order to
be a neophyte for a particular chapter.[142] The neophyte period is usually one
to two semesters long.[143] During the program, neophytes are required to
interview and to get to know the active members of the chapter; to learn
chapter history; to understand the principles of the organization; to maintain
a specified grade point average; to participate in the organizations activities;
and to show dignity and respect for their fellow neophytes, the organization,
and its active and alumni members.[144] Some chapters require the initiation
activities for a recruit to involve hazing acts during the entire neophyte
stage.[145]
Hazing, as commonly understood, involves an initiation rite or ritual
that serves as prerequisite for admission to an organization.[146] In hazing, the
recruit, pledge, neophyte, initiate, applicant or any other term by which the
organization may refer to such a person is generally placed in embarrassing
or humiliating situations, like being forced to do menial, silly, foolish, or
other similar tasks or activities.[147] It encompasses different forms of conduct
that humiliate, degrade, abuse, or physically endanger those who desire
membership in the organization.[148] These acts usually involve physical or
psychological suffering or injury.[149]
The concept of initiation rites in the country is nothing new. In fact,
more than a century ago, our national hero Andres Bonifacio organized a
secret society named Kataastaasan Kagalanggalangang Katipunan ng mga
Anak ng Bayan (The Highest and Most Venerable Association of the Sons In Easler v. Hejaz Temple of Greenville, decided in 1985, the
and Daughters of the Nation).[150] The Katipunan, or KKK, started as a small candidate-victim was injured during the shriners hazing event, which was

confraternity believed to be inspired by European Freemasonry, as well as by part of the initiation ceremonies for Hejaz membership.[159] The ritual
involved what was known as the mattress-rotating barrel trick.[160] It required
confraternities or sodalities approved by the Catholic
each candidate to slide down an eight to nine-foot-high metal board onto
Church.[151] The Katipunans ideology was brought home to each member
connected mattresses leading to a barrel, over which the candidate was
through the societys initiation ritual.[152] It is said that initiates were brought
required to climb.[161] Members of Hejaz would stand on each side of the
to a dark room, lit by a single point of illumination, and were asked a series
mattresses and barrel and fun-paddle candidates en route to the barrel.[162]
of
questions to determine their fitness, loyalty, courage, and resolve. [153] They In a video footage taken in 1991, U.S. Marine paratroopers in Camp
were made to go through vigorous trials such as pagsuot sa isang lungga or Lejeune, North Carolina, were seen performing a ceremony in which they

[pagtalon] sa balon.[154] It would seem that they were also made to withstand pinned paratrooper jump wings directly onto the neophyte paratroopers
chests.[163] The victims were shown writhing and crying out in pain as others
the blow of pangherong bakal sa pisngi and to endure a matalas na
pounded the spiked medals through the shirts and into the chests of the
punyal.[155] As a final step in the ritual, the neophyte Katipunero was made to
victims.[164]
sign membership papers with the his own blood. [156]
In State v. Allen, decided in 1995, the Southeast Missouri State
It is believed that the Greek fraternity system was transported by the
University chapter of Kappa Alpha Psi invited male students to enter into a
Americans to the Philippines in the late 19 th century. As can be seen in the
pledgeship program.[165] The fraternity members subjected the pledges to
following instances, the manner of hazing in the United States was jarringly
repeated physical abuse including repeated, open-hand strikes at the nape, the
similar to that inflicted by the Aquila Fraternity on Lenny Villa.
chest, and the back; caning of the bare soles of the feet and buttocks; blows

Early in 1865, upperclassmen at West Point Academy forced the to the back with the use of a heavy book and a cookie sheet while the pledges

fourth classmen to do exhausting physical exercises that sometimes resulted were on their hands and knees; various kicks and punches to the body; and

in permanent physical damage; to eat or drink unpalatable foods; and in body slamming, an activity in which active members of the fraternity lifted

various ways to humiliate themselves.[157] In 1901, General Douglas pledges up in the air and dropped them to the ground. [166] The fraternity

MacArthur got involved in a congressional investigation of hazing at the members then put the pledges through a seven-station circle of physical

academy during his second year at West Point.[158] abuse.[167]

 In Ex Parte Barran, decided in 1998, the pledge-victim went
through hazing by fraternity members of the Kappa Alpha Order at the
Auburn University in Alabama.[168] The hazing included the following: (1)
having to dig a ditch and jump into it after it had been filled with water, urine,
feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks;
(3) being pushed and kicked, often onto walls or into pits and trash cans; (4)
eating foods like peppers, hot sauce, butter, and yerks (a mixture of hot sauce,
mayonnaise, butter, beans, and other items); (5) doing chores for the
fraternity and its members, such as cleaning the fraternity house and yard,
during the 2005-06 academic year.[174] The pledges efforts to join the
fraternity culminated in a series of initiation rituals conducted in four nights.
Jones, together with other candidates, was blindfolded, verbally harassed, and
caned on his face and buttocks.[175] In these rituals described as preliminaries,
which lasted for two evenings, he received approximately 60 canings on his
buttocks.[176] During the last two days of the hazing, the rituals
intensified.[177] The pledges sustained roughly 210 cane strikes during the
four-night initiation.[178] Jones and several other candidates passed out.[179]

being designated as driver, and running errands; (6) appearing regularly at 2

a.m. meetings, during which the pledges would be hazed for a couple of
hours; and (7) running the gauntlet, during which the pledges were pushed,
kicked, and hit as they ran down a hallway and descended down a flight of
The purported raison dtre behind hazing practices is the proverbial
birth by fire, through which the pledge who has successfully withstood the
hazing proves his or her worth.[180] Some organizations even believe that

stairs.[169]
In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim
Sylvester Lloyd was accepted to pledge at the Cornell University chapter of
the Alpha Phi Alpha Fraternity.[170] He participated in initiation activities,
which included various forms of physical beatings and torture, psychological
coercion and embarrassment.[171]
hazing is the path to enlightenment. It is said that this process enables the
organization to establish unity among the pledges and, hence, reinforces and
ensures the future of the organization.[181] Alleged benefits of joining include
leadership opportunities; improved academic performance; higher self-
esteem; professional networking opportunities; and the esprit
dcorp associated with close, almost filial, friendship and common cause. [182]

In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the

initiate-victim suffered injuries from hazing activities during the fraternitys
initiation rites.[172] Kenner and the other initiates went through psychological Anti-Hazing laws in the U.S.
and physical hazing, including being paddled on the buttocks for more than
The first hazing statute in the U.S. appeared in 1874 in response to
200 times.[173]
hazing in the military.[183] The hazing of recruits and plebes in the armed
services was so prevalent that Congress prohibited all forms of
In Morton v. State, Marcus Jones a university student in Florida
military hazing, harmful or not.[184] It was not until 1901 that Illinois passed
sought initiation into the campus chapter of the Kappa Alpha Psi Fraternity
the first state anti-hazing law, criminalizing conduct whereby any one
sustains an injury to his [or her] person therefrom. [185]
However, it was not until the 1980s and 1990s, due in large part to
the efforts of the Committee to Halt Useless College Killings and other
similar organizations, that states increasingly began to enact legislation
prohibiting and/or criminalizing hazing.[186] As of 2008, all but six states had
[187]
enacted criminal or civil statutes proscribing hazing. Most anti-hazing
laws in the U.S. treat hazing as a misdemeanor and carry relatively light
[188]
consequences for even the most severe situations. Only a few states with
anti-hazing laws consider hazing as a felony in case death or great bodily
harm occurs.[189]
Under the laws of Illinois, hazing is a Class A misdemeanor, except
hazing that results in death or great bodily harm, which is a Class 4
felony.[190] In a Class 4 felony, a sentence of imprisonment shall be for a term
of not less than one year and not more than three years. [191] Indiana criminal
law provides that a person who recklessly, knowingly, or intentionally
performs hazing that results in serious bodily injury to a person commits
criminal recklessness, a Class D felony.[192]
The offense becomes a Class C felony if committed by means of a
deadly weapon.[193] As an element of a Class C felony criminal recklessness
resulting in serious bodily injury, death falls under the category of serious
bodily injury.[194] A person who commits a Class C felony is imprisoned for
a fixed term of between two (2) and eight (8) years, with the advisory
sentence being four (4) years.[195] Pursuant to Missouri law, hazing is a Class
A misdemeanor, unless the act creates a substantial risk to the life of the
student or prospective member, in which case it becomes a Class C
[196]
felony. A Class C felony provides for an imprisonment term not to exceed
[197]
seven years.
In Texas, hazing that causes the death of another is a state jail
felony.[198] An individual adjudged guilty of a state jail felony is punished by
confinement in a state jail for any term of not more than two years or not less
than 180 days.[199] Under Utah law, if hazing results in serious bodily injury,
the hazer is guilty of a third-degree felony.[200] A person who has been
convicted of a third-degree felony may be sentenced to imprisonment for a
term not to exceed five years.[201] West Virginia law provides that if the act
of hazing would otherwise be deemed a felony, the hazer may be found guilty
thereof and subject to penalties provided therefor.[202] In Wisconsin, a person
is guilty of a Class G felony if hazing results in the death of another. [203] A
Class G felony carries a fine not to exceed $25,000 or imprisonment not to
exceed 10 years, or both.[204]
In certain states in the U.S., victims of hazing were left with limited
remedies, as there was no hazing statute.[205] This situation was exemplified
in Ballou v. Sigma Nu General Fraternity, wherein Barry Ballous family
resorted to a civil action for wrongful death, since there was no anti-hazing
statute in South Carolina until 1994.[206]
The existence of animus
interficendi or intent to
kill not proven beyond
reasonable doubt
The presence of an ex ante situation in this case, fraternity initiation
rites does not automatically amount to the absence of malicious intent
or dolus malus. If it is proven beyond reasonable doubt that the perpetrators
were equipped with a guilty mind whether or not there is a contextual
background or factual premise they are still criminally liable for intentional
felony.
 Witness We were brought up into [Michael Musngis] room
The trial court, the CA, and the Solicitor General are all in
and we were briefed as to what to
agreement that with the exception of Villareal and Dizon accused Tecson, expect during the next three
Ama, Almeda, and Bantug did not have the animus interficendi or intent to days and we were told the members
of the fraternity and their batch and
kill Lenny Villa or the other neophytes. We shall no longer disturb this we were also told about the
finding. fraternity song, sir.

xxxxxxxxx
As regards Villareal and Dizon, the CA modified the Decision of the
trial court and found that the two accused had the animus interficendi or Witness We were escorted out of [Michael Musngis] house
and we were made to ride a van and
intent to kill Lenny Villa, not merely to inflict physical injuries on him. It
we were brought to another place in
justified its finding of homicide against Dizon by holding that he had Kalookan City which I later found to
apparently been motivated by ill will while beating up Villa. Dizon kept be the place of Mariano Almeda, sir.

repeating that his fathers parking space had been stolen by the victims xxxxxxxxx
father.[207] As to Villareal, the court said that the accused suspected the family
Witness Upon arrival, we were instructed to bow our head
of Bienvenido Marquez, one of the neophytes, to have had a hand in the death down and to link our arms and then
of Villareals brother.[208] The CA then ruled as follows: the driver of the van and other
members of the Aquilans who were
The two had their own axes to grind against Villa and inside left us inside the van, sir.
Marquez. It was very clear that they acted with evil and
criminal intent. The evidence on this matter is unrebutted xxxxxxxxx
and so for the death of
Villa, appellants Dizon and Villareal must and should Witness We heard voices shouted outside the van to the
face the consequence of their acts, that is, to be held effect, Villa akin ka, Asuncion
liable for the crime of homicide.[209] (Emphasis supplied) Patay ka and the people outside
pound the van, rock the van, sir.

We cannot subscribe to this conclusion. Atty. Tadiar Will you please recall in what tone of voice
and how strong a voice these
The appellate court relied mainly on the testimony of Bienvenido remarks uttered upon your arrival?
Marquez to determine the existence of animus interficendi. For a full
Witness Some were almost shouting, you could feel the
appreciation of the context in which the supposed utterances were made, the sense of excitement in their voices,
Court deems it necessary to reproduce the relevant portions of witness sir.
Marquezs testimony:
xxxxxxxxx

Atty. Tadiar During all these times that the van was being
rocked through and through, what
were the voices or utterances that
you heard?
Witness Villa akin ka, Asuncion patay ka, Recinto patay
ka sa amin, etc., sir.
Atty. Tadiar And those utterances and threats, how long
did they continue during the rocking
of the van which lasted for 5
minutes?
xxxxxxxxx
Witness Even after they rocked the van, we still kept on
hearing voices, sir.
xxxxxxxxx
Atty. Tadiar During the time that this rounds [of physical
beating] were being inflicted, was
there any utterances by anybody?
Witness Yes sir. Some were piercing, some were
discouraging, and some were
encouraging others who were
pounding and beating us, it was
just like a fiesta atmosphere,
actually some of them enjoyed
looking us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you
heard?
Witness One particular utterance always said was, they
asked us whether matigas pa yan,
kayang-kaya pa niyan.
Atty. Tadiar Do you know who in particular uttered those
particular words that you quote?
Witness I cannot particularly point to because there were
utterances simultaneously, I could
not really pin point who uttered
those words, sir.
xxxxxxxxx
Atty. Tadiar Were there any utterances that you heard
during the conduct of this Bicol
Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court
what were the utterances that you
remember?
Witness For example, one person particularly Boyet
Dizon stepped on my thigh, he
would say that and I quote ito,
yung pamilya nito ay pinapatay
yung kapatid ko, so that would in
turn sort of justifying him in
inflicting more serious pain on me.
So instead of just walking, he would
jump on my thighs and then after
on was Lenny Villa. He was saying
to the effect that this guy, his
father stole the parking space of
my father, sir. So, thats why he
inflicted more pain on Villa and that
went on, sir.
Atty. Tadiar And you were referring to which particular
accused?
Witness Boyet Dizon, sir.

Atty. Tadiar When Boyet Dizon at that particular time was
accusing you of having your family
have his brother killed, what was
your response?
Witness Of course, I knew sir that it was not true and
that he was just making it up sir.
So he said that I knew nothing of
that incident. However, he just in
fact after the Bicol Express, he kept
on uttering those words/statements
so that it would in turn justify him
and to give me harder blows, sir.
xxxxxxxxx
Atty. Tadiar You mentioned about Dizon in particular
mentioning that Lenny Villas
father stole the parking space
allotted for his father, do you
recall who were within hearing
distance when that utterance was
made?
Witness Yes, sir. All of the neophytes heard that utterance,
sir.
xxxxxxxxx
Witness There were different times made this accusation
so there were different people who
heard from time to time, sir.
xxxxxxxxx
Atty. Tadiar Can you tell the Honorable Court when was
the next accusation against Lenny
Villas father was made?
Witness When we were line up against the wall, Boyet
Dizon came near to us and when
Lenny Villas turn, I heard him
uttered those statements, sir.
Atty. Tadiar What happened after he made this accusation
to Lenny Villas father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villas
thighs and sometime he stand up
and he kicked his thighs and
sometimes jumped at it, sir.
xxxxxxxxx
Atty. Tadiar We would go on to the second day but not
right now. You mentioned also
that accusations made
by Dizon you or your family had
his brother killed, can you inform
this Honorable Court what
exactly were the accusations that
were charged against you while
inflicting blows upon you in
particular?
Witness While he was inflicting blows upon me, he told me
in particular if I knew that his family
who had his brother killed, and he
said that his brother was an NPA, sir
so I knew that it was just a story
that he made up and I said that I
knew nothing about it and he
continued inflicting blows on me,
sir. And another incident was when
a talk was being given, Dizon was
 on another part of the pelota court
and I was sort of looking and we saw
that he was drinking beer, and he
said and I quote: Marquez,
Marquez, ano ang tinitingin-
tingin mo diyan, ikaw yung
pamilya mo ang nagpapatay sa
aking kapatid, yari ka sa akin, sir.
Atty. Tadiar What else?
Witness Thats all, sir.
Atty. Tadiar And on that first night of February 8, 1991,
did ever a doctor or a physician
came around as promised to you
earlier?
Witness No, sir.[210] (Emphasis supplied)
On cross-examination, witness Bienvenido Marquez testified thus:
Judge Purisima When you testified on direct examination
Mr. Marquez, have you stated that
there was a briefing that was
conducted immediately before your
initiation as regards to what to
expect during the initiation, did I
hear you right?
Witness Yes, sir.
Judge Purisima Who did the briefing?
Witness Mr. Michael Musngi, sir and Nelson Victorino.
Judge Purisima Will you kindly tell the Honorable Court
what they told you to expect during
the initiation?
Witness They told us at the time we would be brought to a
particular place, we would be
mocked at, sir.
Judge Purisima So, you expected to be mocked at,
ridiculed, humiliated etc., and the
likes?
Witness Yes, sir.
Judge Purisima You were also told beforehand that there
would be physical contact?
Witness Yes, sir at the briefing.
xxxxxxxxx
Witness Yes, sir, because they informed that we could
immediately go back to school. All
the bruises would be limited to our
arms and legs, sir. So, if we wear the
regular school uniforms like long
sleeves, it would be covered
actually so we have no thinking that
our face would be slapped, sir.
Judge Purisima So, you mean to say that beforehand that
you would have bruises on your
body but that will be covered?
Witness Yes, sir.
JudgePurisima So, what kind of physical contact or
implements that you expect that
would create bruises to your body?
Witness At that point I am already sure that there would be
hitting by a paddling or paddle, sir.
 xxxxxxxxx
Judge Purisima Now, will you admit Mr. Marquez that
much of the initiation procedures
is psychological in nature?
Witness Combination, sir.[211] (Emphasis supplied)
xxxxxxxxx
Atty. Jimenez The initiation that was conducted did not
consist only of physical initiation,
meaning body contact, is that
correct?
Witness Yes, sir.
Atty. Jimenez Part of the initiation was the so-called
psychological initiation, correct?
Witness Yes, sir.
Atty. Jimenez And this consisted of making you believe
of things calculated to terrify you,
scare you, correct?
Witness Yes, sir.
Atty. Jimenez In other words, the initiating masters made
belief situation intended to, I
repeat, terrify you, frighten you,
scare you into perhaps quitting
the initiation, is this correct?
Witness Sometimes sir, yes.
Atty. Jimenez You said on direct that while Mr. Dizon was
initiating you, he said or he was
supposed to have said according to
you that your family were
responsible for the killing of his
brother who was an NPA, do you
remember saying that?
Witness Yes, sir.
Atty. Jimenez You also said in connection with that
statement said to you by Dizon
that you did not believe him
because that is not true, correct?
Witness Yes, sir.
Atty. Jimenez In other words, he was only
psychologizing you perhaps, the
purpose as I have mentioned
before, terrifying you, scaring you
or frightening you into quitting
the initiation, this is correct?
Witness No, sir, perhaps it is one but the main reason, I
think, why he was saying those
things was because he wanted to
inflict injury.
Atty. Jimenez He did not tell that to you. That is your only
perception, correct?
Witness No, sir, because at one point, while he was telling
this to Villareal, he was hitting me.
Atty. Jimenez But did you not say earlier that you [were]
subjected to the same forms of
initiation by all the initiating
masters? You said that earlier,
right?
Witness Yes, sir.
 Atty. Jimenez Are you saying also that the others who
jumped on you or kicked you said
something similar as was told to you
by Mr. Dizon?
Witness No, sir.
Atty. Jimenez But the fact remains that in the Bicol
Express for instance, the masters
would run on your thighs, right?
Witness Yes, sir.
Atty. Jimenez This was the regular procedure that was
followed by the initiating masters
not only on you but also on the other
neophytes?
Witness Yes, sir.
Atty. Jimenez In other words, it is fair to say that
whatever forms of initiation was
administered by one master, was
also administered by one master
on a neophyte, was also
administered by another master
on the other neophyte, this is
correct?
Witness Yes, sir.[212] (Emphasis supplied)
According to the Solicitor General himself, the ill motives attributed
by the CA to Dizon and Villareal were baseless,[213] since the statements of
the accused were just part of the psychological initiation calculated to instill
fear on the part of the neophytes; that [t]here is no element of truth in it as
testified by Bienvenido Marquez; and that the harsh words uttered by
Petitioner and Villareal are part of tradition concurred and accepted by all the
fraternity members during their initiation rites.[214]
We agree with the Solicitor General.
The foregoing testimony of witness Marquez reveals a glaring
mistake of substantial proportion on the part of the CA it mistook the
utterances of Dizon for those of Villareal. Such inaccuracy cannot be
tolerated, especially because it was the CAs primary basis for finding that
Villarreal had the intent to kill Lenny Villa, thereby making Villareal guilty
of the intentional felony of homicide. To repeat, according to Bienvenido
Marquezs testimony, as reproduced above, it was Dizon who uttered both
accusations against Villa and Marquez; Villareal had no participation
whatsoever in the specific threats referred to by the CA. It was Boyet
Dizon [who] stepped on [Marquezs] thigh; and who told witness
Marquez, [I]to, yung pamilya nito ay pinapatay yung kapatid ko. It was also
Dizon who jumped on Villas thighs while saying, [T]his guy, his father stole
the parking space of my father. With the testimony clarified, we find that the
CA had no basis for concluding the existence of intent to kill based solely
thereon.
As to the existence of animus interficendi on the part of Dizon, we
refer to the entire factual milieu and contextual premise of the incident to
fully appreciate and understand the testimony of witness Marquez. At the
outset, the neophytes were briefed that they would be subjected to
psychological pressure in order to scare them. They knew that they would be
mocked, ridiculed, and intimidated. They heard fraternity members
shout, Patay ka, Recinto, Yari ka, Recinto, Villa, akin ka, Asuncion, gulpi
ka, Putang ina mo, Asuncion, Putang ina nyo, patay kayo sa amin, or some
other words to that effect.[215] While beating the neophytes, Dizon accused
Marquez of the death of the formers purported NPA brother, and then blamed
Lenny Villas father for stealing the parking space of Dizons father. According
to the Solicitor General, these statements, including those of the accused
Dizon, were all part of the psychological initiation employed by the Aquila
Fraternity.[216]
Thus, to our understanding, accused Dizons way of inflicting
psychological pressure was through hurling make-believe accusations at the
initiates. He concocted the fictitious stories, so that he could justify giving
the neophytes harder blows, all in the context of fraternity initiation and role
playing. Even one of the neophytes admitted that the accusations were untrue
and made-up.
The infliction of psychological pressure is not unusual in the
conduct of hazing. In fact, during the Senate deliberations on the then
proposed Anti-Hazing Law, former Senator Lina spoke as follows:
Senator Lina. -- so as to capture the intent that we conveyed
during the period of interpellations on why we included the
phrase or psychological pain and suffering.
xxxxxxxxx
So that if no direct physical harm is inflicted upon the
neophyte or the recruit but the recruit or neophyte is
made to undergo certain acts which I already described
yesterday, like playing the Russian roulette extensively to
test the readiness and the willingness of the neophyte or
recruit to continue his desire to be a member of the
fraternity, sorority or similar organization or playing
and putting a noose on the neck of the neophyte or recruit,
making the recruit or neophyte stand on the ledge of the
fourth floor of the building facing outside, asking him to
jump outside after making him turn around several times
but the reality is that he will be made to jump towards the
inside portion of the building these are the mental or
psychological tests that are resorted to by these
organizations, sororities or fraternities. The doctors who
appeared during the public hearing testified that such acts
can result in some mental aberration, that they can even
lead to psychosis, neurosis or insanity. This is what we
want to prevent.[217] (Emphasis supplied)
Thus, without proof beyond reasonable doubt, Dizons behavior must
not be automatically viewed as evidence of a genuine, evil motivation to kill
Lenny Villa. Rather, it must be taken within the context of the fraternitys
psychological initiation. This Court points out that it was not even established
whether the fathers of Dizon and Villa really had any familiarity with each
other as would lend credence to the veracity of Dizons threats. The testimony
of Lennys co-neophyte, Marquez, only confirmed this view. According to
Marquez, he knew it was not true and that [Dizon] was just making it
up.[218] Even the trial court did not give weight to the utterances of Dizon as
constituting intent to kill: [T]he cumulative acts of all the accused were not
directed toward killing Villa, but merely to inflict physical harm as part of
the fraternity initiation rites x x x.[219] The Solicitor General shares the same
view.
Verily, we cannot sustain the CA in finding the accused Dizon guilty
of homicide under Article 249 of the Revised Penal Code on the basis of the
existence of intent to kill. Animus interficendi cannot and should not be
inferred unless there is proof beyond reasonable doubt of such
intent.[220] Instead, we adopt and reinstate the finding of the trial court in
part, insofar as it ruled that none of the fraternity members had the
specific intent to kill Lenny Villa.[221]
The existence of animus
iniuriandi or malicious intent
to injure not proven beyond
reasonable doubt
The Solicitor General argues, instead, that there was an intent to
inflict physical injuries on Lenny Villa. Echoing the Decision of the trial
court, the Solicitor General then posits that since all of the accused fraternity
members conspired to inflict physical injuries on Lenny Villa and death
ensued, all of them should be liable for the crime of homicide pursuant to
Article 4(1) of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles
262 to 266 of the Revised Penal Code,[222] the employment of physical
injuries must be coupled with dolus malus. As an act that is mala in se, the
existence of malicious intent is fundamental, since injury arises from the
mental state of the wrongdoer iniuria ex affectu facientis consistat. If there is
no criminal intent, the accused cannot be found guilty of an intentional
felony. Thus, in case of physical injuries under the Revised Penal Code, there
must be a specific animus iniuriandi or malicious intention to do wrong
against the physical integrity or well-being of a person, so as to incapacitate
and deprive the victim of certain bodily functions. Without proof beyond
reasonable doubt of the required animus iniuriandi, the overt act of inflicting
physical injuries per se merely satisfies the elements of freedom and
intelligence in an intentional felony. The commission of the act does not, in
itself, make a man guilty unless his intentions are. [223]
Thus, we have ruled in a number of instances[224] that the mere
infliction of physical injuries, absent malicious intent, does not make a person
automatically liable for an intentional felony. In Bagajo v. People,[225] the
accused teacher, using a bamboo stick, whipped one of her students behind
her legs and thighs as a form of discipline. The student suffered lesions and
bruises from the corporal punishment. In reversing the trial courts finding of
criminal liability for slight physical injuries, this Court stated thus:
Independently of any civil or administrative responsibility [w]e are persuaded
that she did not do what she had done with criminal intent the means she
actually used was moderate and that she was not motivated by ill-will, hatred
or any malevolent intent. Considering the applicable laws, we then ruled that
as a matter of law, petitioner did not incur any criminal liability for her act of
whipping her pupil. In People v. Carmen,[226] the accused members of the
religious group known as the Missionaries of Our Lady of Fatima under the
guise of a ritual or treatment plunged the head of the victim into a barrel of
water, banged his head against a bench, pounded his chest with fists, and
stabbed him on the side with a kitchen knife, in order to cure him of nervous
breakdown by expelling through those means the bad spirits possessing him.
The collective acts of the group caused the death of the victim. Since
malicious intent was not proven, we reversed the trial courts finding of
liability for murder under Article 4 of the Revised Penal Code and instead
ruled that the accused should be held criminally liable for reckless
imprudence resulting in homicide under Article 365 thereof.
Indeed, the threshold question is whether the accuseds initial acts of
inflicting physical pain on the neophytes were attended by animus
iniuriandi amounting to a felonious act punishable under the Revised Penal
Code, thereby making it subject to Article 4(1) thereof. In People v. Regato,
we ruled that malicious intent must be judged by the action, conduct, and
external acts of the accused.[227] What persons do is the best index of their
intention.[228] We have also ruled that the method employed, the kind of
weapon used, and the parts of the body on which the injury was inflicted may
be determinative of the intent of the perpetrator. [229] The Court shall thus
examine the whole contextual background surrounding the death of Lenny
Villa.
 Lenny died during Aquilas fraternity initiation rites. The night
before the commencement of the rites, they were briefed on what to expect.
They were told that there would be physical beatings, that the whole event
would last for three days, and that they could quit anytime. On their first
night, they were subjected to traditional initiation rites, including the Indian
Run, Bicol Express, Rounds, and the Auxies Privilege Round. The beatings
were predominantly directed at the neophytes arms and legs.
In the morning of their second day of initiation, they were made to
present comic plays and to play rough basketball. They were also required to
memorize and recite the Aquila Fraternitys principles. Late in the afternoon,
they were once again subjected to traditional initiation rituals. When the
rituals were officially reopened on the insistence of Dizon and Villareal, the
neophytes were subjected to another traditional ritual paddling by the
fraternity.
During the whole initiation rites, auxiliaries were assigned to the
neophytes. The auxiliaries protected the neophytes by functioning as human
barriers and shielding them from those who were designated to inflict
physical and psychological pain on the initiates.[230] It was their regular duty
to stop foul or excessive physical blows; to help the neophytes to pump their
legs in order that their blood would circulate; to facilitate a rest interval after
every physical activity or round; to serve food and water; to tell jokes; to
coach the initiates; and to give them whatever they needed.
These rituals were performed with Lennys consent.[231] A few days
before the rites, he asked both his parents for permission to join the Aquila
Fraternity.[232] His father knew that Lenny would go through an initiation
[233]
process and would be gone for three days. The CA found as follows:
It is worth pointing out that the neophytes willingly and
voluntarily consented to undergo physical initiation
and hazing. As can be gleaned from the narration of facts,
they voluntarily agreed to join the initiation rites to become
members of the Aquila Legis Fraternity. Prior to the
initiation, they were given briefings on what to expect. It
is of common knowledge that before admission in a
fraternity, the neophytes will undergo a rite of passage.
Thus, they were made aware that traditional methods
such as mocking, psychological tests and physical
punishment would take place. They knew that the
initiation would involve beatings and other forms of
hazing. They were also told of their right and
opportunity to quit at any time they wanted to. In fact,
prosecution witness Navera testified that accused Tecson
told him that after a week, you can already play basketball.
Prosecution witness Marquez for his part, admitted that
he knew that the initiates would be hit in the arms and
legs, that a wooden paddle would be used to hit them
and that he expected bruises on his arms and legs.
Indeed, there can be no fraternity initiation without
consenting neophytes.[234] (Emphasis supplied)
Even after going through Aquilas grueling traditional rituals during
the first day, Lenny continued his participation and finished the second day
of initiation.
Based on the foregoing contextual background, and absent further proof
showing clear malicious intent, we are constrained to rule that the
specific animus iniuriandi was not present in this case. Even if the specific
acts of punching, kicking, paddling, and other modes of inflicting physical
pain were done voluntarily, freely, and with intelligence, thereby satisfying
the elements of freedom and intelligence in the felony of physical injuries,
the fundamental ingredient of criminal intent was not proven beyond
reasonable doubt. On the contrary, all that was proven was that the acts were
done pursuant to tradition. Although the additional rounds on the second

night were held upon the insistence of Villareal and Dizon, the initiations
were officially reopened with the consent of the head of the initiation rites;
and the accused fraternity members still participated in the rituals, including
the paddling, which were performed pursuant to tradition. Other than the
paddle, no other weapon was used to inflict injuries on Lenny. The targeted
body parts were predominantly the legs and the arms. The designation of
roles, including the role of auxiliaries, which were assigned for the specific
purpose of lending assistance to and taking care of the neophytes during the
initiation rites, further belied the presence of malicious intent. All those who
wished to join the fraternity went through the same process of traditional
initiation; there is no proof that Lenny Villa was specifically targeted or given
a different treatment. We stress that Congress itself recognized that hazing is
uniquely different from common crimes.[235] The totality of the circumstances
must therefore be taken into consideration.
The underlying context and motive in which the infliction of
physical injuries was rooted may also be determined by Lennys continued
participation in the initiation and consent to the method used even after the
first day. The following discussion of the framers of the 1995 Anti-Hazing
Law is enlightening:
SENATOR GUINGONA. Most of these acts, if
not all, are already punished under the Revised Penal Code.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If hazing is done at
present and it results in death, the charge would be murder
or homicide.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If it does not result in
death, it may be frustrated homicide or serious physical
injuries.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. Or, if the person who
commits sexual abuse does so it can be penalized under
rape or acts of lasciviousness.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. So, what is the
rationale for making a new offense under this definition of
the crime of hazing?
SENATOR LINA. To discourage persons or
group of persons either composing a sorority, fraternity or
any association from making this requirement of initiation
that has already resulted in these specific acts or results,
Mr. President.
That is the main rationale. We want to send a
strong signal across the land that no group or association
can require the act of physical initiation before a person can
become a member without being held criminally liable.
xxxxxxxxx
SENATOR GUINGONA. Yes, but what would
be the rationale for that imposition? Because the
distinguished Sponsor has said that he is not punishing a
mere organization, he is not seeking the punishment of an
initiation into a club or organization, he is seeking the
punishment of certain acts that resulted in death, et cetera
as a result of hazing which are already covered crimes.
The penalty is increased in one, because we would
like to discourage hazing, abusive hazing, but it may be a
legitimate defense for invoking two or more charges or
offenses, because these very same acts are already
punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
SENATOR LINA. x x x
Another point, Mr. President, is this, and this is a
very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining
entry into an organization, the intent to commit a
wrong is not visible or is not present, Mr. President.
Whereas, in these specific crimes, Mr. President, let us say
there is death or there is homicide, mutilation, if one files
a case, then the intention to commit a wrong has to be
proven. But if the crime of hazing is the basis, what is
important is the result from the act of hazing.
To me, that is the basic difference and that is
what will prevent or deter the sororities or fraternities; that
they should really shun this activity called
hazing. Because, initially, these fraternities or sororities
do not even consider having a neophyte killed or
maimed or that acts of lasciviousness are even
committed initially, Mr. President.
So, what we want to discourage is the so-
called initial innocent act. That is why there is need to
institute this kind of hazing. Ganiyan po ang nangyari. Ang
fraternity o ang sorority ay magre-recruit. Wala talaga
silang intensiyong makamatay. Hindi ko na babanggitin
at buhay pa iyong kaso. Pero dito sa anim o pito na namatay
nitong nakaraang taon, walang intensiyong patayin talaga
iyong neophyte. So, kung maghihintay pa tayo, na saka
lamang natin isasakdal ng murder kung namatay na, ay
after the fact ho iyon. Pero, kung sasabihin natin sa mga
kabataan na: Huwag ninyong gagawin iyong hazing. Iyan
ay kasalanan at kung mamatay diyan, mataas ang penalty
sa inyo.
xxxxxxxxx
SENATOR GUINGONA. I join the lofty motives,
Mr. President, of the distinguished Sponsor. But I am
again disturbed by his statement that the prosecution
does not have to prove the intent that resulted in the
death, that resulted in the serious physical injuries, that
resulted in the acts of lasciviousness or deranged
mind. We do not have to prove the willful intent of the
accused in proving or establishing the crime of
hazing. This seems, to me, a novel situation where we
create the special crime without having to go into the
intent, which is one of the basic elements of any crime.
If there is no intent, there is no crime. If the
intent were merely to initiate, then there is no offense.
And even the distinguished Sponsor admits that the
organization, the intent to initiate, the intent to have a
new society or a new club is, per se, not punishable at
all. What are punishable are the acts that lead to the
result. But if these results are not going to be proven by
intent, but just because there was hazing, I am afraid
that it will disturb the basic concepts of the Revised
Penal Code, Mr. President.
SENATOR LINA. Mr. President, the act of
hazing, precisely, is being criminalized because in the
context of what is happening in the sororities and
fraternities, when they conduct hazing, no one will
admit that their intention is to maim or to kill. So, we
are already criminalizing the fact of inflicting physical
pain. Mr. President, it is a criminal act and we want it
stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity
to prove that the masters intended to kill or the masters
intended to maim. What is important is the result of the act
of hazing. Otherwise, the masters or those who inflict the
physical pain can easily escape responsibility and say,
We did not have the intention to kill. This is part of our
initiation rites. This is normal. We do not have any
intention to kill or maim.
This is the lusot, Mr. President. They might as
well have been charged therefore with the ordinary
crime of homicide, mutilation, et cetera, where the
prosecution will have a difficulty proving the elements
if they are separate offenses.
xxxxxxxxx
SENATOR GUINGONA. Mr. President,
assuming there was a group that initiated and a person died.
The charge is murder. My question is: Under this bill if it
becomes a law, would the prosecution have to prove
conspiracy or not anymore?
SENATOR LINA. Mr. President, if the person is
present during hazing x x x
SENATOR GUINGONA. The persons are
present. First, would the prosecution have to prove
conspiracy? Second, would the prosecution have to prove
intent to kill or not?
SENATOR LINA. No more. As to the second
question, Mr. President, if that occurs, there is no need to
prove intent to kill.
SENATOR GUINGONA. But the charge is
murder.
SENATOR LINA. That is why I said that it
should not be murder. It should be hazing, Mr.
President. [236] (Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on
the issue of whether to include sodomy as a punishable act under the Anti-
Hazing Law, Senator Lina further clarified thus:
SENATOR BIAZON. Mr. President, this
Representation has no objection to the inclusion of sodomy
as one of the conditions resulting from hazing as necessary
to be punished. However, the act of sodomy can be
committed by two persons with or without consent.
To make it clearer, what is being punished here is
the commission of sodomy forced into another individual
by another individual. I move, Mr. President, that sodomy
be modified by the phrase without consent for purposes of
this section.
SENATOR LINA. I am afraid, Mr. President, that
if we qualify sodomy with the concept that it is only going
to aggravate the crime of hazing if it is done without
consent will change a lot of concepts here. Because the
results from hazing aggravate the offense with or
without consent. In fact, when a person joins a
fraternity, sorority, or any association for that matter,
it can be with or without the consent of the intended
victim. The fact that a person joins a sorority or
fraternity with his consent does not negate the crime of
hazing.
This is a proposed law intended to protect the
citizens from the malpractices that attend initiation which
may have been announced with or without physical
infliction of pain or injury, Mr. President. Regardless of
whether there is announcement that there will be
physical hazing or whether there is none, and therefore,
the neophyte is duped into joining a fraternity is of no
moment. What is important is that there is an infliction
of physical pain.
 The bottom line of this law is that a citizen even
has to be protected from himself if he joins a fraternity, so
that at a certain point in time, the State, the individual, or
the parents of the victim can run after the perpetrators
of the crime, regardless of whether or not there was
consent on the part of the victim.
xxxxxxxxx
SENATOR LINA. Mr. President, I understand the
position taken by the distinguished Gentleman from Cavite
and Metro Manila. It is correct that society sometimes
adopts new mores, traditions, and practices.
In this bill, we are not going to encroach into the
private proclivities of some individuals when they do their
acts in private as we do not take a peek into the private
rooms of couples. They can do their thing if they want to
make love in ways that are not considered acceptable by
the mainstream of society. That is not something that the
State should prohibit.
But sodomy in this case is connected with hazing,
Mr. President. Such that the act may even be entered into
with consent. It is not only sodomy. The infliction of pain
may be done with the consent of the neophyte. If the law
is passed, that does not make the act of hazing not
punishable because the neophyte accepted the infliction
of pain upon himself.
If the victim suffers from serious physical
injuries, but the initiator said, Well, he allowed it upon
himself. He consented to it. So, if we allow that
reasoning that sodomy was done with the consent of the
victim, then we would not have passed any law at all.
There will be no significance if we pass this bill, because
it will always be a defense that the victim allowed the
infliction of pain or suffering. He accepted it as part of
the initiation rites.
But precisely, Mr. President that is one thing
that we would want to prohibit. That the defense of
consent will not apply because the very act of inflicting
physical pain or psychological suffering is, by itself, a
punishable act. The result of the act of hazing, like death
or physical injuries merely aggravates the act with higher
penalties. But the defense of consent is not going to
nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can
only aggravate the offense if it is committed without
consent of the victim, then the whole foundation of this
proposed law will collapse.
SENATOR BIAZON. Thank you, Mr. President.
SENATOR LINA. Thank you very much.
THE PRESIDENT. Is there any objection to the
committee amendment? (Silence.) The Chair hears none;
the same is approved.[237]
(Emphasis supplied)
Realizing the implication of removing the states burden to prove
intent, Senator Lina, the principal author of the Senate Bill, said:
I am very happy that the distinguished Minority
Leader brought out the idea of intent or whether there it
is mala in se or mala prohibita. There can be a radical
amendment if that is the point that he wants to go to.
If we agree on the concept, then, maybe, we can
just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code.
That is a possibility. I will not foreclose that suggestion,
Mr. President.[238](Emphasis supplied)
 Thus, having in mind the potential conflict between the proposed
law and the core principle of mala in se adhered to under the Revised Penal
Code, Congress did not simply enact an amendment thereto. Instead, it
created a special law on hazing, founded upon the principle of mala
prohibita. This dilemma faced by Congress is further proof of how the nature
of hazing unique as against typical crimes cast a cloud of doubt on whether
society considered the act as an inherently wrong conduct or mala in se at the
time. It is safe to presume that Lennys parents would not have
consented[239] to his participation in Aquila Fraternitys initiation rites if the
practice of hazing were considered by them as mala in se.
Furthermore, in Vedaa v. Valencia (1998), we noted through
Associate Justice (now retired Chief Justice) Hilario Davide that in our
nations very recent history, the people have spoken, through Congress, to
deem conduct constitutive of hazing, [an] act[] previously considered
harmless by custom, as criminal.[240] Although it may be regarded as a
simple obiter dictum, the statement nonetheless shows recognition that
hazing or the conduct of initiation rites through physical and/or psychological
suffering has not been traditionally criminalized. Prior to the 1995 Anti-
Hazing Law, there was to some extent a lacuna in the law; hazing was not
clearly considered an intentional felony. And when there is doubt on the
interpretation of criminal laws, all must be resolved in favor of the
accused. In dubio pro reo.
For the foregoing reasons, and as a matter of law, the Court is
constrained to rule against the trial courts finding of malicious intent to inflict
physical injuries on Lenny Villa, there being no proof beyond reasonable
doubt of the existence of malicious intent to inflict physical injuries or animus
iniuriandi as required in mala in se cases, considering the contextual
background of his death, the unique nature of hazing, and absent a law
prohibiting hazing.
The accused fraternity
members guilty of reckless
imprudence resulting in
homicide
The absence of malicious intent does not automatically mean,
however, that the accused fraternity members are ultimately devoid of
criminal liability. The Revised Penal Code also punishes felonies that are
committed by means of fault (culpa). According to Article 3 thereof, there is
fault when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done
without malice, from which an immediate personal harm, injury or material
damage results by reason of an inexcusable lack of precaution or advertence
on the part of the person committing it.[241] In this case, the danger is visible
and consciously appreciated by the actor.[242] In contrast, simple imprudence
or negligence comprises an act done without grave fault, from which an
injury or material damage ensues by reason of a mere lack of foresight or
skill.[243] Here, the threatened harm is not immediate, and the danger is not
openly visible. [244]
The test[245] for determining whether or not a person is negligent in
doing an act is as follows: Would a prudent man in the position of the person
to whom negligence is attributed foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the law
imposes on the doer the duty to take precaution against the mischievous diminished as to produce death. [258] The officer also found that the brain,
results of the act. Failure to do so constitutes negligence. [246] liver, kidney, pancreas, intestines, and all other organs seen in the
abdominals, as well as the thoracic organ in the lungs, were pale due to the
As we held in Gaid v. People, for a person to avoid being charged lack of blood, which was redirected to the thighs and forearms. [259] It was
with recklessness, the degree of precaution and diligence required varies with concluded that there was nothing in the heart that would indicate that the
the degree of the danger involved.[247] If, on account of a certain line of victim suffered from a previous cardiac arrest or disease. [260]
conduct, the danger of causing harm to another person is great, the individual
who chooses to follow that particular course of conduct is bound to be very The multiple hematomas or bruises found in Lenny Villas arms and
careful, in order to prevent or avoid damage or injury. [248] In contrast, if the thighs, resulting from repeated blows to those areas, caused the loss of blood
danger is minor, not much care is required. [249] It is thus possible that there from his vital organs and led to his eventual death. These hematomas must
are countless degrees of precaution or diligence that may be required of an
be taken in the light of the hazing activities performed on him by the Aquila
individual, from a transitory glance of care to the most vigilant effort. [250] The
Fraternity. According to the testimonies of the co-neophytes of Lenny, they
duty of the person to employ more or less degree of care will depend upon
were punched, kicked, elbowed, kneed, stamped on; and hit with different
the circumstances of each particular case.[251]
objects on their arms, legs, and thighs.[261]They were also paddled at the back
There was patent recklessness in the hazing of Lenny Villa. of their thighs or legs;[262] and slapped on their faces.[263] They were made to
play rough basketball.[264] Witness Marquez testified on Lenny,
According to the NBI medico-legal officer, Lenny died of cardiac [265]
saying: [T]inamaan daw sya sa spine. The NBI medico-legal officer
failure secondary to multiple traumatic injuries.[252] The officer explained that
explained that the death of the victim was the cumulative effect of the
cardiac failure refers to the failure of the heart to work as a pump and as part
multiple injuries suffered by the latter.[266] The relevant portion of the
of the circulatory system due to the lack of blood.[253] In the present case, the
victims heart could no longer work as a pumping organ, because it was testimony is as follows:
deprived of its requisite blood and oxygen.[254] The deprivation was due to Atty. Tadiar Doctor, there was, rather, it was your
the channeling of the blood supply from the entire circulatory system testimony on various cross
including the heart, arteries, veins, venules, and capillaries to the thigh, leg, examinations of defense counsels
that the injuries that you have
and arm areas of Lenny, thus causing the formation of multiple hematomas enumerated on the body of the
or blood clots.[255] The multiple hematomas were wide, thick, and deceased Lenny Villa previously
deep,[256] indicating that these could have resulted mainly from injuries marked as Exhibit G-1 to G-14
individually by themselves would
sustained by the victim from fist blows, knee blows, paddles, or the
not cause the death of the victim.
like.[257] Repeated blows to those areas caused the blood to gradually ooze The question I am going to
out of the capillaries until the circulating blood became so markedly propound to you is what is the
cumulative effect of all of these
 injuries marked from Exhibit G-1 to
G-14?
Witness All together nothing in concert to cause to the
demise of the victim. So, it is not fair
for us to isolate such injuries here
because we are talking of the whole
body. At the same manner that as a
car would not run minus one (1)
wheel. No, the more humane in
human approach is to interpret all
those injuries in whole and not in
part.[267]
There is also evidence to show that some of the accused fraternity
members were drinking during the initiation rites.[268]
Consequently, the collective acts of the fraternity members were
tantamount to recklessness, which made the resulting death of Lenny a
culpable felony. It must be remembered that organizations owe to their
initiates a duty of care not to cause them injury in the process. [269] With the
foregoing facts, we rule that the accused are guilty of reckless imprudence
resulting in homicide. Since the NBI medico-legal officer found that the
victims death was the cumulative effect of the injuries suffered, criminal
responsibility redounds to all those who directly participated in and
contributed to the infliction of physical injuries.
It appears from the aforementioned facts that the incident may have
been prevented, or at least mitigated, had the alumni of Aquila Fraternity
accused Dizon and Villareal restrained themselves from insisting on
reopening the initiation rites. Although this point did not matter in the end,
as records would show that the other fraternity members participated in the
reopened initiation rites having in mind the concept of seniority in fraternities
the implication of the presence of alumni should be seen as a point of review
in future legislation. We further note that some of the fraternity members
were intoxicated during Lennys initiation rites. In this light, the Court submits
to Congress, for legislative consideration, the amendment of the Anti-Hazing
Law to include the fact of intoxication and the presence of non-resident or
alumni fraternity members during hazing as aggravating circumstances that
would increase the applicable penalties.
It is truly astonishing how men would wittingly or unwittingly
impose the misery of hazing and employ appalling rituals in the name of
brotherhood. There must be a better way to establish kinship. A neophyte
admitted that he joined the fraternity to have more friends and to avail himself
of the benefits it offered, such as tips during bar examinations.[270] Another
initiate did not give up, because he feared being looked down upon as a
quitter, and because he felt he did not have a choice.[271] Thus, for Lenny Villa
and the other neophytes, joining the Aquila Fraternity entailed a leap in the
dark. By giving consent under the circumstances, they left their fates in the
hands of the fraternity members. Unfortunately, the hands to which lives were
entrusted were barbaric as they were reckless.
Our finding of criminal liability for the felony of reckless
imprudence resulting in homicide shall cover only accused Tecson, Ama,
Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then,
these five accused fraternity members would have all been convicted of the
crime of hazing punishable by reclusion perpetua (life
[272]
imprisonment). Since there was no law prohibiting the act of hazing when
Lenny died, we are constrained to rule according to existing laws at the time
of his death. The CA found that the prosecution failed to prove, beyond victim, so long as the claim is supported by tangible documents.[276] Though
reasonable doubt, we are prepared to award actual damages, the Court is prevented from

Victorino et al.s individual participation in the infliction of physical injuries granting them, since the records are bereft of any evidence to show that actual
expenses were incurred or proven during trial. Furthermore, in the appeal, the
upon Lenny Villa.[273] As to accused Villareal, his criminal liability was
Solicitor General does not interpose any claim for actual damages. [277]
totally extinguished by the fact of his death, pursuant to Article 89 of the
Revised Penal Code. The heirs of the deceased may recover moral damages for the grief
suffered on account of the victims death.[278] This penalty is pursuant to
Furthermore, our ruling herein shall be interpreted without prejudice
Article 2206(3) of the Civil Code, which provides that the spouse, legitimate
to the applicability of the Anti-Hazing Law to subsequent cases. Furthermore,
and illegitimate descendants and the ascendants of the deceased may demand
the modification of criminal liability from slight physical
moral damages for mental anguish by reason of the death of the
injuries to reckless imprudence resulting in homicide shall apply only
deceased.[279] Thus, we hereby we affirm the CAs award of moral damages in
with respect to accused Almeda, Ama, Bantug, and Tecson.
the amount of 1,000,000.

The accused liable to pay

WHEREFORE, the appealed Judgment in G.R. No. 155101
damages
finding petitioner Fidelito Dizon guilty of homicide is

The CA awarded damages in favor of the heirs of Lenny Villa in the hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in

amounts of 50,000 as civil indemnity ex delicto and 1,000,000 as moral G.R. No. 154954 finding Antonio Mariano Almeda, Junel Anthony

damages, to be jointly and severally paid by accused Dizon and Villareal. It Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight

also awarded the amount of 30,000 as indemnity to be jointly and severally physical injuries is also MODIFIED and SET ASIDE IN PART. Instead,

paid by accused Almeda, Ama, Bantug, and Tecson. Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato
Bantug, Jr., and Vincent Tecson are found GUILTY beyond reasonable
Civil indemnity ex delicto is automatically awarded for the sole fact doubt of reckless imprudence resulting in homicide defined and penalized
[274]
of death of the victim. In accordance with prevailing under Article 365 in relation to Article 249 of the Revised Penal Code. They
[275]
jurisprudence, we sustain the CAs award of indemnity in the amount are hereby sentenced to suffer an indeterminate prison term of four (4)
of 50,000. months and one (1) day of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum. In addition, accused
The heirs of the victim are entitled to actual or compensatory are ORDERED jointly and severally to pay the heirs of Lenny Villa civil
damages, including expenses incurred in connection with the death of the
 Associate Justice
indemnity ex delicto in the amount of 50,000, and moral damages in the
Chairperson
amount of 1,000,000, plus legal interest on all damages awarded at the rate
of 12% from the date of the finality of this Decision until
satisfaction.[280] Costs de oficio. ARTURO D. BRION JOSE PORTUGAL PEREZ
Associate Justice Associate Justice
The appealed Judgment in G.R. No. 154954, acquitting Victorino et
BIENVENIDO L. REYES
al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 &
Associate Justice
178080, dismissing the criminal case filed against Escalona, Ramos, Saruca,
and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of
the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, ATTESTATION
and the criminal case against Artemio Villareal
deemed CLOSED and TERMINATED. I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the Opinion of
Let copies of this Decision be furnished to the Senate President and the Courts Division.
the Speaker of the House of Representatives for possible consideration of the ANTONIO
amendment of the Anti-Hazing Law to include the fact of intoxication and T. CARPIO
Associate
the presence of non-resident or alumni fraternity members during hazing as
Justice
aggravating circumstances that would increase the applicable penalties. Chairperson,
Second
SO ORDERED. Division

MARIA LOURDES P. A. SERENO

Associate Justice CERTIFICATION

WE CONCUR: Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairpersons Attestation, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
 VELASCO, JR., J.:

RENATO C. CORONA The Case

Chief Justice
This petition[1] for certiorari, mandamus and prohibition under Rule
Republic of the Philippines
SUPREME COURT 65 assails and seeks to nullify the Non-Surrender Agreement concluded by
Manila and between the Republic of the Philippines (RP) and the United States of
America (USA).
EN BANC

BAYAN MUNA, as represented by Rep. SATUR G.R. No. 159618 The Facts
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA, Present: Petitioner Bayan Muna is a duly registered party-list group
Petitioner,
CORONA, C.J., established to represent the marginalized sectors of society. Respondent
CARPIO, Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the
CARPIO MORALES,
VELASCO, JR., period material to this case.Respondent Alberto Romulo was impleaded in
NACHURA, his capacity as then Executive Secretary.[2]
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA, Rome Statute of the International Criminal Court
BERSAMIN,
DEL CASTILLO,
ABAD, Having a key determinative bearing on this case is the Rome
VILLARAMA, JR.,
PEREZ, Statute[3] establishing the International Criminal Court (ICC) with the power
ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as MENDOZA, and to exercise its jurisdiction over persons for the most serious crimes of
Secretary of Foreign Affairs, SERENO, JJ.
international concern x x x and shall be complementary to the national
Respondents.
Promulgated: criminal jurisdictions.[4] The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes against
February 1, 2011
x-----------------------------------------------------------------------------------------x humanity, war crimes, and crimes of aggression.[5]

DECISION
 On December 28, 2000, the RP, through Charge dAffaires Enrique
A. Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states. [6] As of the filing
of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals. [8] It is
reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between the US and 33 other
countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are
current or former Government officials, employees
(including contractors), or military personnel or nationals
of one Party.
2. Persons of one Party present in the territory of
the other shall not, absent the express consent of the first
Party,
(a) be surrendered or transferred by any means
to any international tribunal for any
purpose, unless such tribunal has been
established by the UN Security Council, or
(b) be surrendered or transferred by any means
to any other entity or third country, or
expelled to a third country, for the purpose
of surrender to or transfer to any
international tribunal, unless such tribunal
has been established by the UN Security
Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or
transfer of that person by the third country to any
international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express
consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or
otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or
transfer of that person by the third country to any
international tribunal, unless such tribunal has been
 established by the UN Security Council, absent the express
consent of the Government of the [US].
5. This Agreement shall remain in force until one
I. WHETHER THE [RP] PRESIDENT AND THE [DFA]
year after the date on which one party notifies the other
of its intent to terminate the Agreement. The provisions
of this Agreement shall continue to apply with respect to
any act occurring, or any allegation arising, before the
effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of diplomatic
notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and
consent of the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and
effect.
For their part, respondents question petitioners standing to
maintain a suit and counter that the Agreement, being in the nature of an
executive agreement, does not require Senate concurrence for its efficacy.
And for reasons detailed in their comment, respondents assert the
constitutionality of the Agreement.
The Issues
SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED
13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT
HAS ALREADY SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY
THE PHILIPPINE SENATE.
A. Whether by entering into the x x
x Agreement Respondents gravely abused their
discretion when they capriciously abandoned,
waived and relinquished our only legitimate
recourse through the Rome Statute of the
[ICC] to prosecute and try persons as defined in
the x x x Agreement, x x x or literally any conduit
of American interests, who have committed
crimes of genocide, crimes against humanity, war
crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending
ratification of the Rome Statute of the [ICC] the
[RP] President and the [DFA] Secretary x x x are
obliged by the principle of good faith to refrain
from doing all acts which would substantially
impair the value of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act
which defeats the object and purpose of
the Rome Statute of the International Criminal
Court and contravenes the obligation of good
faith inherent in the signature of the President
affixed on the Rome Statute of the International
 Criminal Court, and if so whether the x x
x Agreement is void and unenforceable on this
ground.
D. Whether the RP-US Non-Surrender
Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess
of jurisdiction in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER
AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR
OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING
AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT
LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF
THE SENATE x x x.[11]
The foregoing issues may be summarized into two: first, whether
or not the Agreement was contracted validly, which resolves itself into the
question of whether or not respondents gravely abused their discretion in
concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and
undermines the Rome Statute and other treaties. But because respondents
expectedly raised it, we shall first tackle the issue of petitioners legal
standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends
that the issue of the validity or invalidity of the Agreement carries with it
constitutional significance and is of paramount importance that justifies its
standing. Cited in this regard is what is usually referred to as the emergency
powers cases,[12] in which ordinary citizens and taxpayers were accorded the
personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given
question.[13] Specifically, it is a partys personal and substantial interest in a
case where he has sustained or will sustain direct injury as a result[14] of the
act being challenged, and calls for more than just a generalized
grievance.[15] The term interest refers to material interest, as distinguished
from one that is merely incidental.[16] The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a
personal stake in the outcome of the controversy is to assure the concrete
adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional
questions.[17]
Locus standi, however, is merely a matter of procedure and it has
been recognized that, in some cases, suits are not brought by parties who
have been personally injured by the operation of a law or any other
government act, but by concerned citizens, taxpayers, or voters who

actually sue in the public interest.[18] Consequently, in a catena of
cases,[19] this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the
instant suit primarily as concerned citizens raising issues of transcendental
importance, both for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other
government action, a petitioner needs to meet certain specific
requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.[20] expounded on this requirement, thus:
In a long line of cases, however, concerned
citizens, taxpayers and legislators when specific
requirements have been met have been given standing by
this Court.
When suing as a citizen, the interest of the
petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only
that the law or any government act is invalid, but also that
he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act
complained of. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.[21]
In the case at bar, petitioners representatives have complied with
the qualifying conditions or specific requirements exacted under the locus
standi rule. As citizens, their interest in the subject matter of the petition is
direct and personal. At the very least, their assertions questioning
the Agreement are made of a public right, i.e., to ascertain that
the Agreement did not go against established national policies, practices,
and obligations bearing on the States obligation to the community of
nations.
At any event, the primordial importance to Filipino citizens in
general of the issue at hand impels the Court to brush aside the procedural
barrier posed by the traditional requirement of locus standi, as we have
done in a long line of earlier cases, notably in the old but oft-cited
emergency powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of
transcendental importance, we wrote again in Bayan v. Zamora,[24] The
Court may relax the standing requirements and allow a suit to prosper even
where there is no direct injury to the party claiming the right of judicial
review.
Moreover, bearing in mind what the Court said in Taada v. Angara,
that it will not shirk, digress from or abandon its sacred duty and authority
to uphold the Constitution in matters that involve grave abuse of discretion
brought before it in appropriate cases, committed by any officer, agency,

instrumentality or department of the government,[25] we cannot but resolve
head on the issues raised before us. Indeed, where an action of any branch
of government is seriously alleged to have infringed the Constitution or is
done with grave abuse of discretion, it becomes not only the right but in fact
the duty of the judiciary to settle it. As in this petition, issues are precisely
raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form,
its threshold posture being that E/N BFO-028-03 cannot be a valid medium
for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-
recognized international doctrines, practices, and jargonsis untenable. One
of these is the doctrine of incorporation, as expressed in Section 2, Article II
of the Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity
with all nations.[26] An exchange of notes falls into the category of inter-
governmental agreements,[27] which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine
agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of
the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text
of the offering State to record its assent. The signatories
of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes
is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.[28]
In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action.[29] On the other hand, executive agreements concluded by
the President sometimes take the form of exchange of notes and at other
times that of more formal documents denominated agreements or
protocols.[30] As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence
between this and other governments ends
and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may
sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-
03be it viewed as the Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to be boundis a recognized
mode of concluding a legally binding international written contract among
nations.
 Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between states in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
[32]
particular designation. International agreements may be in the form of
(1) treaties that require legislative concurrence after executive ratification;
or (2) executive agreements that are similar to treaties, except that they do
not require legislative concurrence and are usually less formal and deal with
[33]
a narrower range of subject matters than treaties.
Under international law, there is no difference between treaties
and executive agreements in terms of their binding effects on the
[34]
contracting states concerned, as long as the negotiating functionaries
have remained within their powers.[35]Neither, on the domestic sphere, can
[36]
one be held valid if it violates the Constitution. Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the
[37]
concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the
[38]
people; a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious
validity, partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the
following observations made by US legal scholars: [I]nternational
agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take
the form of treaties [while] those embodying adjustments of detail carrying
out well established national policies and traditions and those involving
arrangements of a more or less temporary nature take the form of executive
agreements. [40]
Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case
of Adolfo v. CFI of Zambales and Merchant,[41] holding that an executive
agreement through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
 concluded from time to time. Hundreds of executive
The categorization of subject matters that may be covered
agreements, other than those entered into under the
by international agreements mentioned in Eastern Sea Trading is not cast in trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the
stone. There are no hard and fast rules on the propriety of entering, on a
inspection of vessels, navigation dues, income tax on
given subject, into a treaty or an executive agreement as an instrument of shipping profits, the admission of civil air craft, custom
international relations. The primary consideration in the choice of the form matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and
of agreement is the parties intent and desire to craft an international copyrights, etc. x x x
agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it comes to
And lest it be overlooked, one type of executive agreement is a
effectiveness and binding effect of the enforcement of a treaty or an
treaty-authorized[44] or a treaty-implementing executive
executive agreement, as the parties in either international agreement each
agreement,[45] which necessarily would cover the same matters subject of
labor under the pacta sunt servanda[42] principle.
the underlying treaty.

As may be noted, almost half a century has elapsed since the Court
But over and above the foregoing considerations is the fact
rendered its decision in Eastern Sea Trading. Since then, the conduct of
thatsave for the situation and matters contemplated in Sec. 25, Art. XVIII of
foreign affairs has become more complex and the domain of international
the Constitution[46]when a treaty is required, the Constitution does not
law wider, as to include such subjects as human rights, the environment,
classify any subject, like that involving political issues, to be in the form of,
and the sea. In fact, in the US alone, the executive agreements executed by
and ratified as, a treaty. What the Constitution merely prescribes is that
its President from 1980 to 2000 covered subjects such as defense, trade,
treaties need the concurrence of the Senate by a vote defined therein to
scientific cooperation, aviation, atomic energy, environmental cooperation,
complete the ratification process.
peace corps, arms limitation, and nuclear safety, among others. [43] Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of
Petitioners reliance on Adolfo[47] is misplaced, said case being
each state on the matter of which the international agreement format
inapplicable owing to different factual milieus. There, the Court held that an
would be convenient to serve its best interest. As Francis Sayre said in his
executive agreement cannot be used to amend a duly ratified and existing
work referred to earlier:
x x x It would be useless to undertake to discuss treaty, i.e., the Bases Treaty.Indeed, an executive agreement that does not
here the large variety of executive agreements as such require the concurrence of the Senate for its ratification may not be used to
amend a treaty that, under the Constitution, is the product of the ratifying
acts of the Executive and the Senate. The presence of a treaty, purportedly
being subject to amendment by an executive agreement, does not obtain
under the premises.
Considering the above discussion, the Court need not belabor at
length the third main issue raised, referring to the validity and effectivity of
the Agreement without the concurrence by at least two-thirds of all the
members of the Senate. The Court has, in Eastern Sea Trading,[48] as
reiterated in Bayan,[49] given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into
binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have
entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously
questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that
the Agreement undermines the establishment of the ICC and is null and void
insofar as it unduly restricts the ICCs jurisdiction and infringes upon the
effectivity of the Rome Statute. Petitioner posits that the Agreement was
constituted solely for the purpose of providing individuals or groups of
individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not
legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes
that state parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, thereby constituting a
breach of Arts. 27,[50] 86,[51] 89[52] and 90[53]thereof.
Petitioner stresses that the overall object and purpose of the Rome
Statute is to ensure that those responsible for the worst possible crimes are
brought to justice in all cases, primarily by states, but as a last resort, by the
ICC; thus, any agreementlike the non-surrender agreementthat precludes
the ICC from exercising its complementary function of acting when a state
is unable to or unwilling to do so, defeats the object and purpose of the
Rome Statute.
Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the
imperatives of good faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as signed. Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has
an immoral purpose or is otherwise at variance with a priorly executed
treaty.
Contrary to petitioners pretense, the Agreement does not
contravene or undermine, nor does it differ from, the Rome Statute. Far
from going against each other, one complements the other. As a matter of
fact, the principle of complementarity underpins the creation of the ICC. As
aptly pointed out by respondents and admitted by petitioners, the
jurisdiction of the ICC is to be complementary to national criminal
[54]
jurisdictions [of the signatory states]. Art. 1 of the Rome Statute
pertinently provides:
Article 1
The Court
An International Crimininal Court (the Court) is
hereby established. It x x x shall have the power to
exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this
Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court
shall be governed by the provisions of this
Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute
declares that it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes. This provision indicates that
primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with
the ICC in appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.
Of particular note is the application of the principle of ne bis in
[56]
idem under par. 3 of Art. 20, Rome Statute, which again underscores the
primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
relevant, the provision states that no person who has been tried by another
court for conduct x x x [constituting crimes within its jurisdiction] shall be
tried by the [International Criminal] Court with respect to the same conduct
x x x.
The foregoing provisions of the Rome Statute, taken collectively,
argue against the idea of jurisdictional conflict between the Philippines, as
party to the non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs undertaking
under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the
Rome Statute expressly recognizes the primary jurisdiction of states, like the
RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the
signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP,
by entering into the Agreement, violated its duty required by the
imperatives of good faith and breached its commitment under the Vienna
Convention[57] to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statutehas to be rejected outright. For
nothing in the provisions of the Agreement, in relation to the Rome Statute,
tends to diminish the efficacy of the Statute, let alone defeats the purpose
of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the
process require the requested state to perform an act that would violate
some international agreement it has entered into. We refer to Art. 98(2) of
the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request
for surrender which would require the requested
State to act inconsistently with its obligations under
international agreements pursuant to which the
consent of a sending State is required to surrender a
person of that State to the Court, unless the Court can
first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable
difference between a State-Party and a signatory to a treaty. Under the
Vienna Convention on the Law of Treaties, a signatory state is only obliged
to refrain from acts which would defeat the object and purpose of a
treaty;[58] whereas a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification
by the Senate. Thus, it is only obliged to refrain from acts which would
defeat the object and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-
surrender agreements are prevented from meeting their obligations under
the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These
articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that
the Agreement is not incompatible with the Rome Statute. Specifically, Art.
90(4) provides that [i]f the requesting State is a State not Party to this
Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the
request for surrender from the Court. x x x In applying the provision, certain
undisputed facts should be pointed out: first, the US is neither a State-Party
nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or
surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of
the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement,
abdicated its sovereignty by bargaining away the jurisdiction of the ICC to
prosecute US nationals, government officials/employees or military
personnel who commit serious crimes of international concerns in
the Philippines. Formulating petitioners argument a bit differently, the
RP, by entering into the Agreement, does thereby abdicate its sovereignty,
abdication being done by its waiving or abandoning its right to seek recourse
through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of
affirmance and confirmance of the Philippines national criminal
jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP
either to prosecute criminal offenses equally covered by the Rome Statute
or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide
to try persons of the US, as the term is understood in the Agreement, under
our national criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US persons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the
ICC over them. As to persons of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to
exercise either its national criminal jurisdiction over the person concerned
or to give its consent to the referral of the matter to the ICC for trial. In the
same breath, the US must extend the same privilege to the Philippines with
respect to persons of the RP committing high crimes within US territorial
jurisdiction.
In the context of the Constitution, there can be no serious objection
to the Philippines agreeing to undertake the things set forth in
the Agreement. Surely, one State can agree to waive jurisdictionto the
extent agreed uponto subjects of another State due to the recognition of
the principle of extraterritorial immunity. What the Court wrote in Nicolas
v. Romulo[59]a case involving the implementation of the criminal jurisdiction
provisions of the RP-US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation
to long-recognized subjects of such immunity like Heads
of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another
States territory. x x x
To be sure, the nullity of the subject non-surrender agreement
cannot be predicated on the postulate that some of its provisions constitute
a virtual abdication of its sovereignty. Almost every time a state enters into
an international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the world. It even adheres, as
earlier stated, to the policy of cooperation and amity with all nations. [60]

By their nature, treaties and international agreements actually
have a limiting effect on the otherwise encompassing and absolute nature
of sovereignty. By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one contracting party to grant the
same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international
law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.[61] Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine
courts.[62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab
initio for imposing immoral obligations and/or being at variance with
allegedly universally recognized principles of international law. The immoral
aspect proceeds from the fact that the Agreement, as petitioner would put
it, leaves criminals immune from responsibility for unimaginable atrocities
that deeply shock the conscience of humanity; x x x it precludes our country
from delivering an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier
position, which, as already discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to
international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the
non-surrender agreement, as aptly described by the Solicitor General, is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and
competence of the countrys judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing high crimes
of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized
under the Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of the RP or the US, before
the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of
individuals to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its existing
laws. With the view we take of things, there is nothing immoral or violative
of international law concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the non-surrender agreement over an
offense considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement. And without specifically saying so,
petitioner would argue that the non-surrender agreement was executed by
the President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the
above posture of petitioner, the same having been discussed at length
earlier on. As to the second portion, We wish to state that petitioner
virtually faults the President for performing, through respondents, a task
conferred the President by the Constitutionthe power to enter into
international agreements.
By constitutional fiat and by the nature of his or her office, the
President, as head of state and government, is the sole organ and authority
[65]
in the external affairs of the country. The Constitution vests in the
President the power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the Senate. But as
earlier indicated, executive agreements may be validly entered into without
such concurrence. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into or ratify
[66]
binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BFO-028-03,
then President Gloria Macapagal-Arroyo, represented by the Secretary of
Foreign Affairs, acted within the scope of the authority and discretion vested
in her by the Constitution.At the end of the day, the Presidentby ratifying,
thru her deputies, the non-surrender agreementdid nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to
her office.
While the issue of ratification of the Rome Statute is not
determinative of the other issues raised herein, it may perhaps be pertinent
to remind all and sundry that about the time this petition was interposed,
such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the
Executive Secretary.[67] As the Court emphasized in said case, the power to
ratify a treaty, the Statute in that instance, rests with the President, subject
to the concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the
latters consent to the ratification of the treaty, refuse to ratify it.[68] This
prerogative, the Court hastened to add, is the Presidents alone and cannot
be encroached upon via a writ of mandamus. Barring intervening events,
then, the Philippines remains to be just a signatory to the Rome
Statute. Under Art. 125[69] thereof, the final acts required to complete the
treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law
Republic Act No. (RA) 9851, otherwise known as the Philippine Act on Crimes
Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph
thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if
another court or international tribunal is already
conducting the investigation or undertaking the
prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant
to the applicable extradition laws and
treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal
laws on the States obligation in relation to grave crimes against the law of
nations, i.e., genocide, crimes against humanity and war crimes. Relying on
the above-quoted statutory proviso, the view posits that the Philippine is
required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not exercise
its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not
decide to prosecute a foreign national for violations of RA 9851,
the Philippines has only two options, to wit: (1) surrender the accused to the
proper international tribunal; or (2) surrender the accused to another State
if such surrender is pursuant to the applicable extradition laws and
treaties. But the Philippines may exercise these options only in cases where
another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime; otherwise,
the Philippines must prosecute the crime before its own courts pursuant to
RA 9851.
Posing the situation of a US national under prosecution by an
international tribunal for any crime under RA 9851, the Philippines has the
option to surrender such US national to the international tribunal if it
decides not to prosecute such USnational here. The view asserts that this
option of the Philippines under Sec. 17 of RA 9851 is not subject to the
consent of the US, and any derogation of Sec. 17 of RA 9851, such as
requiring the consent of the US before the Philippines can exercise such
option, requires an amendatory law. In line with this scenario, the view
strongly argues that the Agreement prevents the Philippineswithout the
consent of the USfrom surrendering to any international tribunal US
nationals accused of crimes covered by RA 9851, and, thus, in effect amends
Sec. 17 of RA 9851. Consequently, the view is strongly impressed that
the Agreement cannot be embodied in a simple executive agreement in the
form of an exchange of notes but must be implemented through an
extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II
of the Constitution, where the Philippines adopts, as a national policy,
the generally accepted principles of international law as part of the law
of the land, the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or
custom and for which reason it assumes the status of an enforceable domestic
law in the context of the aforecited constitutional provision. As a corollary, it
is argued that any derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the
objects of the principles of law or alters customary rules embodied in the
Rome Statute.
Prescinding from the foregoing premises, the view thus advanced
considers the Agreement inefficacious, unless it is embodied in a treaty duly
ratified with the concurrence of the Senate, the theory being that a Senate-
ratified treaty partakes of the nature of a municipal law that can amend or
supersede another law, in this instance Sec. 17 of RA 9851 and the status of
the Rome Statute as constitutive of enforceable domestic law under Sec. 2,
Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we
find that the Agreement does not amend or is repugnant to RA 9851. For
another, the view does not clearly state what precise principles of law, if
any, the Agreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not
undermine the Rome Statute as the former merely reinforces the primacy
of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military
personnel, among others. The jurisdiction of the ICC pursuant to the Rome
Statute over high crimes indicated thereat is clearly and unmistakably
complementary to the national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes
against international humanitarian law, genocide and other crimes against
humanity;[70] (2) provides penal sanctions and criminal liability for their
commission;[71] and (3) establishes special courts for the prosecution of
these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the
tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17,
RA 9851 as requiring the Philippine State to surrender to the proper
international tribunal those persons accused of crimes sanctioned under
said law if it does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above quoted proviso
clearly provides discretion to the Philippine State on whether to surrender
or not a person accused of the crimes under RA 9851. The statutory proviso
uses the word may. It is settled doctrine in statutory construction that the
word may denotes discretion, and cannot be construed as having
mandatory effect.[73] Thus, the pertinent second pararagraph of Sec. 17, RA
9851 is simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is
mandatorily required when the Philippines does not exercise its primary
jurisdiction in cases where another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime,
still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made to another
State pursuant to the applicable extradition laws and
treaties. The Agreement can already be considered a treaty following this
Courts decision in Nicolas v. Romulo[74] which cited Weinberger v.
Rossi.[75] In Nicolas, We held that an executive agreement is a treaty within
the meaning of that word in international law and constitutes enforceable
[76]
domestic law vis--vis the United States.
Likewise, the Philippines and the US already have an existing
extradition treaty, i.e., RP-US Extradition Treaty, which was executed on
November 13, 1994. The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13, 1977. Thus,
the Agreement, in conjunction with the RP-US Extradition Treaty, would
neither violate nor run counter to Sec. 17 of RA 9851.
[77]
The views reliance on Suplico v. Neda is similarly improper. In
that case, several petitions were filed questioning the power of the
President to enter into foreign loan agreements. However, before the
petitions could be resolved by the Court, the Office of the Solicitor General
filed a Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network Project,
thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the
President) and found the petition to be indeed moot. Accordingly, it
dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed
the legal implications of an executive agreement. He stated that an
executive agreement has the force and effect of law x x x [it] cannot amend
or repeal prior laws.[78] Hence, this argument finds no application in this
case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this
argument cannot be found in the ratio decidendi of the case, but only in the
dissenting opinion.
The view further contends that the RP-US Extradition Treaty is
inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US
Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and
thereby concluding that while the Philippines has criminalized under RA
9851 the acts defined in the Rome Statute as war crimes, genocide and other
crimes against humanity, there is no similar legislation in the US. It is further
argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law
defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing
the high crimes mentioned earlier. In fact, as early as October 2006,
the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, on 3 May 1996), when the United States is a party
to such Protocol, willfully kills or causes serious
Part I, Title 18 of the United States Code Annotated (USCA) provides for the
injury to civilians.[80]
criminal offense of war crimes which is similar to the war crimes found in
both the Rome Statute and RA 9851, thus:
Similarly, in December 2009, the US adopted a law that
criminalized genocide, to wit:
(a) Offense Whoever, whether inside or outside the
United States, commits a war crime, in any of the
1091. Genocide
circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term
(a) Basic Offense Whoever, whether in
of years, or both, and if death results to the victim,
the time of peace or in time of war and with
shall also be subject to the penalty of death.
specific intent to destroy, in whole or in
(b) Circumstances The circumstances referred to in
substantial part, a national, ethnic, racial or
subsection (a) are that the person committing such
religious group as such
war crime or the victim of such war crime is a member
(1) kills members of that group;
of the Armed Forces of the United States or a national
(2) causes serious bodily injury to members
of the United States (as defined in Section 101 of the
of that group;
Immigration and Nationality Act).
(3) causes the permanent impairment of
(c) Definition As used in this Section the term war crime
the mental faculties of members of the
means any conduct
group through drugs, torture, or similar
(1) Defined as a grave breach in any of the
techniques;
international conventions signed at Geneva 12
(4) subjects the group to conditions of life
August 1949, or any protocol to such convention
that are intended to cause the physical
to which the United States is a party;
destruction of the group in whole or in part;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex
(5) imposes measures intended to prevent
to the Hague Convention IV, Respecting the Laws
births within the group; or
and Customs of War on Land, signed 18 October
(6) transfers by force children of the group
1907;
to another group;
(3) Which constitutes a grave breach of common
shall be punished as provided in subsection
Article 3 (as defined in subsection [d]) when
(b).[81]
committed in the context of and in association
with an armed conflict not of an international
character; or Arguing further, another view has been advanced that the current
(4) Of a person who, in relation to an armed conflict US laws do not cover every crime listed within the jurisdiction of the ICC and
and contrary to the provisions of the Protocol on
that there is a gap between the definitions of the different crimes under
Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as amended at the US laws versus the Rome Statute. The view used a report written by
Geneva on 3 May 1996 (Protocol II as amended
Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The US Military part, a national, ethnical, racial national, ethnic, racial or religious
or religious group, as such: group as such
and the International Criminal Court, as its basis.
(a) Killing members of the group; (1) kills members of that group;
(b) Causing serious bodily or (2) causes serious bodily injury to
At the outset, it should be pointed out that the report used may not have mental harm to members of members of that group;
any weight or value under international law. Article 38 of the Statute of the the group; (3) causes the permanent impairment
International Court of Justice (ICJ) lists the sources of international law, as (c) Deliberately inflicting on the of the mental faculties of
group conditions of life members of the group
follows: (1) international conventions, whether general or particular, calculated to bring about its through drugs, torture, or
establishing rules expressly recognized by the contesting states; (2) physical destruction in similar techniques;
international custom, as evidence of a general practice accepted as law; (3) whole or in part; (4) subjects the group to conditions of
the general principles of law recognized by civilized nations; and (4) subject (d) Imposing measures intended life that are intended to cause
to prevent births within the the physical destruction of the
to the provisions of Article 59, judicial decisions and the teachings of the
group; group in whole or in part;
most highly qualified publicists of the various nations, as subsidiary means (e) Forcibly transferring children (5) imposes measures intended to
for the determination of rules of law. The report does not fall under any of of the group to another prevent births within the
the foregoing enumerated sources. It cannot even be considered as the group. group; or
(6) transfers by force children of the
teachings of highly qualified publicists. A highly qualified publicist is a
group to another group;
scholar of public international law and the term usually refers to legal shall be punished as provided in
scholars or academic writers.[82] It has not been shown that the authors[83] of subsection (b).
this report are highly qualified publicists. Article 8 (a) Definition As used in this Section
War Crimes the term war crime means any
2. For the purpose of this conduct
Assuming arguendo that the report has weight, still, the perceived
Statute, war crimes means: (1) Defined as a grave breach in
gaps in the definitions of the crimes are nonexistent. To highlight, the table (a) Grave breaches of the any of the international
below shows the definitions of genocide and war crimes under the Rome Geneva Conventions of 12 conventions signed
Statute vis--vis the definitions under US laws: August 1949, namely, any of at Geneva12 August 1949, or
the following acts against any protocol to such
persons or property protected convention to which
under the provisions of the the United States is a party;
Rome Statute US Law relevant Geneva Convention: x (2) Prohibited by Article 23, 25,
Article 6 1091. Genocide x x[84] 27 or 28 of the Annex to the
Genocide (b) Other serious violations of Hague Convention IV,
For the purpose of this Statute, (a) Basic Offense Whoever, whether the laws and customs Respecting the Laws and
genocide means any of the in the time of peace or in time of war applicable in international Customs of War on Land,
following acts committed with and with specific intent to destroy, in armed conflict, within the signed 18 October 1907;
intent to destroy, in whole or in whole or in substantial part, a established framework of
 international law, namely, any
of the following acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of
the following acts committed
against persons taking no active
part in the hostilities, including
members of armed forces who
have laid down their arms and
those placed hors de combat by
sickness, wounds, detention or
any other cause:
xxxx
(d) Paragraph 2 (c) applies to
armed conflicts not of an
international character and thus
does not apply to situations of
internal disturbances and
tensions, such as riots, isolated
and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of
the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely, any
of the following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not
present. In fact, the report itself stated as much, to wit:
(3) Which constitutes a grave
breach of common Article 3
(as defined in subsection
[d][85]) when committed in the
context of and in association
with an armed conflict not of
an international character; or
(4) Of a person who, in relation to
an armed conflict and
contrary to the provisions of
the Protocol on Prohibitions
or Restrictions on the Use of
Mines, Booby-Traps and
Other Devices as amended at
Geneva on 3 May 1996
(Protocol II as amended on 3
May 1996), when the United
States is a party to such
Protocol, willfully kills or
causes serious injury to
civilians.[86]
Few believed there were wide differences
between the crimes under the jurisdiction of the Court
and crimes within the Uniform Code of Military Justice
that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting
the elements of crimes outlined in the Rome Statute, they
ensured that most of the crimes were consistent with
those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts
argued, could be addressed through existing military
laws.[87] x x x
The report went on further to say that [a]ccording to those
involved, the elements of crimes laid out in the Rome Statute have been part
of US military doctrine for decades.[88] Thus, the argument proffered cannot
stand.
Nonetheless, despite the lack of actual domestic legislation,
the US notably follows the doctrine of incorporation. As early as 1900, the
esteemed Justice Gray in The Paquete Habana[89] case already held
international law as part of the law of the US, to wit:
International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their
determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works
of jurists and commentators who by years of labor,
research, and experience have made themselves
peculiarly well acquainted with the subjects of which they
 treat. Such works are resorted to by judicial tribunals, not
for the speculations of their authors concerning what the
law ought to be, but for the trustworthy evidence of what
the law really is.[90] (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime
despite the lack of domestic legislation. The cited ruling in U.S. v.
Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92] only
applies to common law and not to the law of nations or international
law.[93] Indeed, the Court in U.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common
law jurisdiction in criminal cases.[94] Stated otherwise, there is no common
law crime in the US but this is considerably different from international law.
The US doubtless recognizes international law as part of the law of
the land, necessarily including international crimes, even without any local
statute.[95] In fact, years later, US courts would apply international law as a
source of criminal liability despite the lack of a local statute criminalizing it
as such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that
[f]rom the very beginning of its history this Court has recognized and applied
the law of war as including that part of the law of nations which prescribes,
for the conduct of war, the status, rights and duties of enemy nations as well
as of enemy individuals.[97] It went on further to explain that Congress had
not undertaken the task of codifying the specific offenses covered in the law
of war, thus:
It is no objection that Congress in providing for
the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its
precise boundaries, or to enumerate or define by statute
all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of
nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently
precise definition of international law. x x x Similarly by
the reference in the 15th Article of War to offenders or
offenses that x x x by the law of war may be triable by such
military commissions. Congress has incorporated by
reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the
law of war x x x, and which may constitutionally be
included within that jurisdiction.[98] x x x (Emphasis
supplied.)
This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes against
humanity have attained the status of customary international law. Some
even go so far as to state that these crimes have attained the status of jus
cogens.[99]
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ.[100] It is defined as the
general and consistent practice of states recognized and followed by them
from a sense of legal obligation.[101] In order to establish the customary
status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective
element.[102]
State practice refers to the continuous repetition of the same or
similar kind of acts or norms by States.[103] It is demonstrated upon the
existence of the following elements: (1) generality; (2) uniformity and
consistency; and (3) duration.[104]While, opinio juris, the psychological
element, requires that the state practice or norm be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it.[105]
[106]
The term jus cogens means the compelling law. Corollary, a jus
cogens norm holds the highest hierarchical position among all other
customary norms and principles.[107] As a result, jus cogens norms are
[108]
deemed peremptory and non-derogable. When applied to international
crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from
them, even by agreement.[109]
These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., any state may exercise jurisdiction over an individual who
commits certain heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists.[110] The rationale behind this
principle is that the crime committed is so egregious that it is considered to
be committed against all members of the international community [111] and
thus granting every State jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic legislation on the part of
the US, it still has both the doctrine of incorporation and universal
jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an
international tribunal, found in the Rome Statute is not declaratory of
customary international law.
The first element of customary international law, i.e., established,
widespread, and consistent practice on the part of States,[113] does not,
under the premises, appear to be obtaining as reflected in this simple
[114]
reality: As of October 12, 2010, only 114 States have ratified the Rome
Statute, subsequent to its coming into force eight (8) years earlier, or on July
1, 2002. The fact that 114 States out of a total of 194[115] countries in the
world, or roughly 58.76%, have ratified the Rome Statute casts doubt on
whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome
Statute. Lest it be overlooked, the Philippines, judging by the action or
inaction of its top officials, does not even feel bound by the Rome
Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the
Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:
Custom or customary international law means a
general and consistent practice of states followed by them
from a sense of legal obligation [opinio juris] x x x. This
statement contains the two basic elements of custom: the
material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom
is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or
long. x x x

xxxx
Duration therefore is not the most important
element. More important is the consistency and the
generality of the practice. x x x
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine why
states behave the way they do. Do states behave the way
they do because they consider it obligatory to behave thus
or do they do it only as a matter of courtesy? Opinio juris,
or the belief that a certain form of behavior is obligatory,
is what makes practice an international rule. Without it,
practice is not law.[116] (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone
prevalent practice, among the different countries in the world that the
prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the
second or the psychological element must be deemed non-existent, for an
inquiry on why states behave the way they do presupposes, in the first place,
that they are actually behaving, as a matter of settled and consistent
practice, in a certain manner. This implicitly requires belief that the practice
in question is rendered obligatory by the existence of a rule of law requiring
it.[117] Like the first element, the second element has likewise not been
shown to be present.
Further, the Rome Statute itself rejects the concept of universal
jurisdiction over the crimes enumerated therein as evidenced by it requiring
State consent.[118] Even further, the Rome Statute specifically and
unequivocally requires that: This Statute is subject to ratification,
acceptance or approval by signatory States. [119]
These clearly negate the
argument that such has already attained customary status.
More importantly, an act of the executive branch with a foreign
government must be afforded great respect. The power to enter into
executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of
Public Officers and Investigations, [t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President
to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine
[120]
jurisprudence. The rationale behind this principle is the inviolable
doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention
of the law, courts should exercise utmost caution in declaring any executive
agreement invalid.
In light of the above consideration, the position or view that the
challenged RP-US Non-Surrender Agreement ought to be in the form of a
treaty, to be effective, has to be rejected.
 WHEREFORE, the petition for certiorari, mandamus and
prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED. WE CONCUR:

RENATO C. CORONA
PRESBITERO J. VELASCO, JR. Chief Justice
Associate Justice

See dissenting opinion I join the dissent of J. Carpio

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

No Part
ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA AUSTRIA-MARTINEZ,
Associate Justice Associate Justice - versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
I concur in the result VELASCO, JR.,
MARIA LOURDES P. A. SERENO NACHURA,
Associate Justice LEONARDO-DE CASTRO,
BRION,
and
PERALTA
, JJ.
A
CERTIFICATION L
B
E
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified R
that the conclusions in the above Decision had been reached in consultation T
before the case was assigned to the writer of the opinion of the Court. O
R
O
M
U
L
RENATO C. CORONA O
Chief Justice ,
i
n
EN BANC h
i
SUZETTE NICOLAS y SOMBILON, G.R. No. 175888 s
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l E. TAADA, JOSE DE LA RAMA,
C EMILIO C. CAPULONG, H. HARRY
o L. ROQUE, JR., FLORIN HILBAY,
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L SECRETARY ALBERTO
. ROMULO, The Special
D 16th Division of the COURT
A OF APPEALS, and all
N persons acting in their
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L
S X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
M
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A February 11, 2009
N
D
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O X
C
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O DECISION
V
E
R AZCUNA, J.:
N
M
E These are petitions for certiorari, etc. as special civil actions and/or
N
T for review of the Decision of the Court of Appeals in Lance Corporal Daniel
S J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212,
E
C dated January 2, 2007.
R
E
T The facts are not disputed.
A
R
Y Respondent Lance Corporal (L/CPL) Daniel Smith is a member of
R
O the United States Armed Forces. He was charged with the crime of rape

committed against a Filipina, petitioner herein, sometime on November 1,
2005, as follows:
The undersigned accused LCpl. Daniel Smith,
Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith
Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape
under Article 266-A of the Revised Penal Code, as
amended by Republic Act 8353, upon a complaint under
oath filed by Suzette S. Nicolas, which is attached hereto
and made an integral part hereof as Annex A, committed
as follows:
That on or about the First (1st)
day of November 2005, inside the Subic
Bay Freeport Zone, Olongapo City and
within the jurisdiction of this Honorable
Court, the above-named accuseds (sic),
being then members of the United States
Marine Corps, except Timoteo L.
Soriano, Jr., conspiring, confederating
together and mutually helping one
another, with lewd design and by means
of force, threat and intimidation, with
abuse of superior strength and taking
advantage of the intoxication of the
victim, did then and there willfully,
unlawfully and feloniously sexually
abuse and have sexual intercourse with
or carnal knowledge of one Suzette S.
Nicolas, a 22-year old unmarried woman
inside a Starex Van with Plate No. WKF-
162, owned by Starways Travel
and Tours, with Office address at 8900
P. Victor St., Guadalupe, Makati City,
and driven by accused Timoteo L.
Soriano, Jr., against the will and consent
of the said Suzette S. Nicolas, to her
damage and prejudice.
CONTRARY TO LAW.[1]
Pursuant to the Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into on February
10, 1998, the United States, at its request, was granted custody of defendant
Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial
Court (RTC) of Zambales to the RTC of Makati for security reasons, the
United States Government faithfully complied with its undertaking to bring
defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the
trial, rendered its Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure
of the prosecution to adduce sufficient evidence against
accused S/SGT. CHAD BRIAN CARPENTER, L/CPL.
KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the
USS Essex, are hereby ACQUITTED to the crime charged.
The prosecution having presented sufficient
evidence against accused L/CPL. DANIEL J. SMITH, also
of the US Marine Corps at the USS Essex, this Court
hereby finds him GUILTY BEYOND REASONABLE
DOUBT of the crime of RAPE defined under Article 266-
A, paragraph 1 (a) of the Revised Penal Code, as amended
by R.A. 8353, and, in accordance with Article 266-B, first
paragraph thereof, hereby sentences him to suffer the
penalty of reclusion perpetua together with the accessory
penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the
Visiting Forces Agreement entered into by
the Philippines and the United States, accused L/CPL.
DANIEL J. SMITH shall serve his sentence in the facilities
that shall, thereafter, be agreed upon by appropriate
Philippine and United States authorities. Pending
agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati
City Jail.
Accused L/CPL. DANIEL J. SMITH is further
sentenced to indemnify complainant SUZETTE S.
NICOLAS in the amount of P50,000.00 as compensatory
damages plus P50,000.00 as moral damages.
SO ORDERED.[2]
As a result, the Makati court ordered Smith detained at
the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of
the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and Local
Government, and brought to a facility for detention under the control of the
United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states:
The Government of the Republic of the Philippines and the
Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed
between our two nations, Lance Corporal Daniel J. Smith,
United States Marine Corps, be returned to U.S. military
custody at the U.S. Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO
G. ROMULO
Representative of the United States Representative of the
Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006__
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of
the Philippines and the Embassy of the United States of
America agree that, in accordance with the Visiting Forces
Agreement signed between the two nations, upon transfer
of Lance Corporal Daniel J. Smith, United States Marine
Corps, from the Makati City Jail, he will be detained at the
first floor, Rowe (JUSMAG) Building, U.S. Embassy
Compound in a room of approximately 10 x 12 square
feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under
the direct supervision of the Philippine Department of
Interior and Local Government (DILG) will have access to
the place of detention to ensure the United States is in
compliance with the terms of the VFA.
The matter was brought before the Court of Appeals which decided
on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we
resolved to DISMISS the petition for having become
moot.[3]
 Hence, the present actions.

The reason for this provision lies in history and the Philippine
The petitions were heard on oral arguments on September 19, 2008,
experience in regard to the United States military bases in the country.
after which the parties submitted their memoranda.

It will be recalled that under the Philippine Bill of 1902, which laid
Petitioners contend that the Philippines should have custody of
the basis for the Philippine Commonwealth and, eventually, for the
defendant L/CPL Smith because, first of all, the VFA is void and
recognition of independence, the United States agreed to cede to the
unconstitutional.
Philippines all the territory it acquired from Spain under the Treaty of Paris,
plus a few islands later added to its realm, except certain naval ports and/or
This issue had been raised before, and this Court resolved in favor
military bases and facilities, which the United States retained for itself.
of the constitutionality of the VFA. This was in Bayan v. Zamora,[4] brought
by Bayan, one of petitioners in the present cases.
This is noteworthy, because what this means is
that Clark and Subic and the other places in the Philippines covered by the
Against the barriers of res judicata vis--vis Bayan, and stare
RP-US Military Bases Agreement of 1947 were not Philippine territory, as
decisis vis--vis all the parties, the reversal of the previous ruling is sought on
they were excluded from the cession and retained by the US.
the ground that the issue is of primordial importance, involving the
sovereignty of the Republic, as well as a specific mandate of the Constitution.
Accordingly, the Philippines had no jurisdiction over these bases
except to the extent allowed by the United States. Furthermore, the RP-US
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Military Bases Agreement was never advised for ratification by the United
States Senate, a disparity in treatment, because the Philippines regarded it as
Sec. 25. After the expiration in 1991 of the
Agreement between the Philippines and the United States a treaty and had it concurred in by our Senate.
of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Subsequently, the United States agreed to turn over these bases to
Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national the Philippines; and with the expiration of the RP-US Military Bases
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Agreement in 1991, the territory covered by these bases were finally ceded
to the Philippines.
To prevent a recurrence of this experience, the provision in question
was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement
allowing the presence of foreign military bases, troops or facilities in
Philippine territory shall be equally binding on the Philippines and the
foreign sovereign State involved. The idea is to prevent a recurrence of the
situation in which the terms and conditions governing the presence of foreign
armed forces in our territory were binding upon us but not upon the foreign
State.
Applying the provision to the situation involved in these cases, the
question is whether or not the presence of US Armed Forces in Philippine
territory pursuant to the VFA is allowed under a treaty duly concurred in by
the Senate xxx and recognized as a treaty by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in
by the Philippine Senate and has been recognized as a treaty by the United
States as attested and certified by the duly authorized representative of
the United States government.
The fact that the VFA was not submitted for advice and consent of
the United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this is a
matter of internal United Stateslaw. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate for advice and
consent agreements that are policymaking in nature, whereas those that carry
out or further implement these policymaking agreements are merely
submitted to Congress, under the provisions of the so-called CaseZablocki
Act, within sixty days from ratification.[6]
The second reason has to do with the relation between the VFA and
the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN THE
REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August
30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the
Charter of the United Nations and their desire to live in
peace with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which
brought their two peoples together in a common bond of
sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of
unity and their common determination to defend
themselves against external armed attack, so that no
potential aggressor could be under the illusion that either
of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for
collective defense for the preservation of peace and
security pending the development of a more
comprehensive system of regional security in the Pacific
area.
Agreeing that nothing in this present instrument shall be
considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings
between the Republic of the Philippines and the United
States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the
Charter of the United Nations, to settle any international
disputes in which they may be involved by peaceful means
in such a manner that international peace and security and
justice are not endangered and to refrain in their
international relation from the threat or use of force in any
manner inconsistent with the purposes of the United
Nations.
ARTICLE II. In order more effectively to achieve the
objective of this Treaty, the Parties separately and jointly
by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed
attack.
ARTICLE III. The Parties, through their Foreign Ministers
or their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever
in the opinion of either of them the territorial integrity,
political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack
in the Pacific area on either of the parties would be
dangerous to its own peace and safety and declares that it
would act to meet the common dangers in accordance with
its constitutional processes.
Any such armed attack and all measures taken as a result
thereof shall be immediately reported to the Security
Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the
measures necessary to restore and maintain international
peace and security.
ARTICLE V. For the purpose of Article IV, an armed
attack on either of the Parties is deemed to include an
armed attack on the metropolitan territory of either of the
Parties, or on the island territories under its jurisdiction in
the Pacific Ocean, its armed forces, public vessels or
aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be
interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the United
Nations or the responsibility of the United Nations for the
maintenance of international peace and security.
ARTICLE VII. This Treaty shall be ratified by the
Republic of the Philippines and the United Nations of
America in accordance with their respective constitutional
processes and will come into force when instruments of
ratification thereof have been exchanged by them
at Manila.
 ARTICLE VIII. This Treaty shall remain in force Reaffirming their faith in the purposes and principles of the
indefinitely. Either Party may terminate it one year after Charter of the United Nations and their desire to strengthen
notice has been given to the other party. international and regional security in the Pacific area;

IN WITHNESS WHEREOF the undersigned Reaffirming their obligations under the Mutual
Plenipotentiaries have signed this Treaty. Defense Treaty of August 30, 1951;

DONE in duplicate at Washington this thirtieth day of Noting that from time to time elements of the United
August, 1951. States armed forces may visit the Republic of the
Philippines;
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO Considering that cooperation between the United
(Sgd.) JOAQUIN M. ELIZALDE States and the Republic of the Philippines promotes
(Sgd.) VICENTE J. FRANCISCO their common security interests;
(Sgd.) DIOSDADO MACAPAGAL
Recognizing the desirability of defining the treatment
For the United States of America: of United States personnel visiting the Republic of
the Philippines;
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES Have agreed as follows:[9]
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]
Accordingly, as an implementing agreement of the RP-US Mutual
Defense Treaty, it was not necessary to submit the VFA to the US Senate for
Clearly, therefore, joint RP-US military exercises for the purpose of advice and consent, but merely to the US Congress under the CaseZablocki
developing the capability to resist an armed attack fall squarely under the Act within 60 days of its ratification. It is for this reason that the US has
provisions of the RP-US Mutual Defense Treaty. The VFA, which is the certified that it recognizes the VFA as a binding international agreement, i.e.,
instrument agreed upon to provide for the joint RP-US military exercises, is a treaty, and this substantially complies with the requirements of Art. XVIII,
simply an implementing agreement to the main RP-US Military Defense Sec. 25 of our Constitution.[10]
Treaty. The Preamble of the VFA states:
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied
The Government of the United States of America and the
Government of the Republic of the Philippines, with by virtue of the fact that the presence of the US Armed Forces through
the VFA is a presence allowed under the RP-US Mutual Defense
Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and

concurred in by both the Philippine Senate and the US Senate, there is no
violation of the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are
required as a matter of international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the
members of the US Armed Forces in the Philippines, the following rules
apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel
over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities,
if they so request, from the commission of the offense until
completion of all judicial proceedings. United
States military authorities shall, upon formal notification
by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense
with which the person has been charged. In extraordinary
cases, the Philippine Government shall present its position
to the United States Government regarding custody, which
the United States Government shall take into full
account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one
year period will not include the time necessary to
appeal. Also, the one year period will not include any time
during which scheduled trial procedures are delayed
because United States authorities, after timely notification
by Philippine authorities to arrange for the presence of the
accused, fail to do so.
Petitioners contend that these undertakings violate another provision
of the Constitution, namely, that providing for the exclusive power of this
Court to adopt rules of procedure for all courts in the Philippines (Art. VIII,
Sec. 5[5]). They argue that to allow the transfer of custody of an accused to
a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III,
Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory and all other accused. [11]
The rule in international law is that a foreign armed forces allowed
to enter ones territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Forces Agreements involving foreign military
units around the world vary in terms and conditions, according to the situation
of the parties involved, and reflect their bargaining power. But the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties. [12]
 appropriate Philippines and United
As a result, the situation involved is not one in which the power of States authorities. United States personnel serving
this Court to adopt rules of procedure is curtailed or violated, but rather one sentences in the Philippines shall have the right to visits
and material assistance.
in which, as is normally encountered around the world, the laws (including
rules of procedure) of one State do not extend or apply except to the extent
agreed upon to subjects of another State due to the recognition of It is clear that the parties to the VFA recognized the difference

extraterritorial immunity given to such bodies as visiting foreign armed between custody during the trial and detention after conviction, because they

forces. provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in

Nothing in the Constitution prohibits such agreements recognizing facilities agreed on by authorities of both parties, but also that the detention

immunity from jurisdiction or some aspects of jurisdiction (such as custody), shall be by Philippine authorities. Therefore, the Romulo-Kenney

in relation to long-recognized subjects of such immunity like Heads of State, Agreements of December 19 and 22, 2006, which are agreements on the

diplomats and members of the armed forces contingents of a foreign State detention of the accused in the United States Embassy, are not in accord

allowed to enter another States territory. On the contrary, the Constitution with the VFA itself because such detention is not by Philippine authorities.

states that the Philippines adopts the generally accepted principles of

international law as part of the law of the land. (Art. II, Sec. 2). Respondents should therefore comply with the VFA and negotiate
with representatives of the United States towards an agreement on detention

Applying, however, the provisions of VFA, the Court finds that facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the

there is a different treatment when it comes to detention as against VFA.

custody. The moment the accused has to be detained, e.g., after conviction,
the rule that governs is the following provision of the VFA: Next, the Court addresses the recent decision of the United States
Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25,
Article V 2008), which held that treaties entered into by the United States are not
Criminal Jurisdiction
automatically part of their domestic law unless these treaties are self-
xxx
executing or there is an implementing legislation to make them enforceable.
Sec. 10. The confinement or detention by
Philippine authorities of United States personnel shall be
carried out in facilities agreed on by
On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto
Romulo, et al.); G.R. No. 176051 (Jovito R.
Salonga, et al. v. Daniel Smith, et al.); and G.R.
No. 176222 (Bagong Alyansang Makabayan
[BAYAN], et al. v. President Gloria Macapagal-
Arroyo, et al.).
First, the VFA is a self-executing Agreement, as that term is defined
in Medellin itself, because the parties intend its provisions to be enforceable,
precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact,
the VFA has been implemented and executed, with the US faithfully

The parties, including the Solicitor General, are required to complying with its obligation to produce L/CPL Smith before the court
submit within three (3) days a Comment/Manifestation on during the trial.
the following points:

1. What is the implication on the RP-US

Secondly, the VFA is covered by implementing legislation, namely, the
Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and
v. Texas, dated March 25, 2008, to the effect that
treaty stipulations that are not self-executory can intent of the US Congress that executive agreements registered under this Act
only be enforced pursuant to legislation to carry within 60 days from their ratification be immediately implemented. The
them into effect; and that, while treaties may
comprise international commitments, they are not parties to these present cases do not question the fact that the VFA has been
domestic law unless Congress has enacted registered under the Case-Zablocki Act.
implementing statutes or the treaty itself conveys
an intention that it be self-executory and is ratified
on these terms?
In sum, therefore, the VFA differs from the Vienna Convention on Consular
2. Whether the VFA is enforceable in the US as Relations and the Avena decision of the International Court of Justice (ICJ),
domestic law, either because it is self-executory
or because there exists legislation to implement it. subject matter of the Medellin decision. The Convention and the ICJ decision
are not self-executing and are not registrable under the Case-Zablocki Act,
3. Whether the RP-US Mutual Defense Treaty
of August 30, 1951 was concurred in by the US and thus lack legislative implementing authority.
Senate and, if so, is there proof of the US Senate
advice and consent resolution? Peralta, J., no part.
Finally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate on March 20, 1952, as reflected in the US
After deliberation, the Court holds, on these points, as follows:
Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp.
2594-2595.
 1. Art. II, Sec. 2 treaties These are advised and consented
The framers of the Constitution were aware that the application of to by the US Senate in accordance with Art. II, Sec. 2 of
international law in domestic courts varies from country to country. the US Constitution.

2. ExecutiveCongressional Agreements: These are joint

As Ward N. Ferdinandusse states in his Treatise, DIRECT agreements of the President and Congress and need not be
submitted to the Senate.
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL
COURTS, some countries require legislation whereas others do not. 3. Sole Executive Agreements. These are agreements
entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are
It was not the intention of the framers of the 1987 Constitution, in
recognized by the Congress and may be implemented.
adopting Article XVIII, Sec. 25, to require the other contracting State to
convert their system to achieve alignment and parity with ours. It was simply
As regards the implementation of the RP-US Mutual Defense
required that the treaty be recognized as a treaty by the other contracting
Treaty, military aid or assistance has been given under it and this can only be
State. With that, it becomes for both parties a binding international obligation
done through implementing legislation. The VFA itself is another form of
and the enforcement of that obligation is left to the normal recourse and
implementation of its provisions.
processes under international law.

WHEREFORE, the petitions are PARTLY GRANTED, and the

Furthermore, as held by the US Supreme Court in Weinberger v.
Court of Appeals Decision in CA-G.R. SP No. 97212 dated January 2,
Rossi,[13] an executive agreement is a treaty within the meaning of that word
2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the
in international law and constitutes enforceable domestic law vis--
Republic of the Philippines and the United States, entered into on February
vis the United States. Thus, the US Supreme Court in Weinberger enforced
10, 1998, is UPHELD as constitutional, but the Romulo-Kenney
the provisions of the executive agreement granting preferential employment
Agreements of December 19 and 22, 2006 are DECLARED not in
to Filipinos in the US Bases here.
accordance with the VFA, and respondent Secretary of Foreign Affairs is
hereby ordered to forthwith negotiate with the United States representatives
for the appropriate agreement on detention facilities under Philippine
Accordingly, there are three types of treaties in the American
authorities as provided in Art. V, Sec. 10 of the VFA, pending which
system:
the status quo shall be maintained until further orders by this Court.
 Associate Justice Associate Justice

The Court of Appeals is hereby directed to resolve without delay the

related matters pending therein, namely, the petition for contempt and the
appeal of L/CPL Daniel Smith from the judgment of conviction. RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice

No costs.

SO ORDERED.

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA
Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice
WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

REYNATO S. PUNO Associate Justice Associate Justice
Chief Justice

DIOSDADO M. PERALTA
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO Associate Justice
Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

 CERTIFICATION
The Case
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court. This is an appeal from the September 30, 2008 Decision [1] of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02135 entitled People of the
Philippines v. Ricky Alfredo y Norman, which affirmed an earlier decision[2] in
REYNATO S. PUNO
Chief Justice Criminal Case Nos. 01-CR-4213 and 01-CR-4214of the Regional Trial Court
(RTC), Branch 62 in La Trinidad, Benguet. The RTC found accused-appellant
Republic of the Philippines
SUPREME COURT Ricky Alfredo y Norman guilty beyond reasonable doubt of two counts of
Manila rape.

FIRST DIVISION
The Facts

PEOPLE OF THE PHILIPPINES, G.R. No. 188560

Accused-appellant was charged in two (2) separate Informations,
Plaintiff-Appellee,
Present: the accusatory portions of which read:
- versus -
CORONA, C.J., Chairperson,
VELASCO, JR., Criminal Case No. 01-CR-4213
RICKY ALFREDO y NORMAN, LEONARDO-DE CASTRO,
Accused-Appellant. DEL CASTILLO, and That sometime in the period from April 28-29,
PEREZ, JJ. 2001, at Cadian, Topdac, Municipality of Atok, Province of
Benguet, Philippines, and within the jurisdiction of this
Promulgated: Honorable Court, the above-named accused, by means of
December 15, 2010 force, intimidation and threats, did then and there
x-----------------------------------------------------------------------------------------x willfully, unlawfully and feloniously have carnal
knowledge with one [AAA],[3] a thirty six (36) year old
DECISION woman, against her will and consent, to her damage and
prejudice.

VELASCO, JR., J.: CONTRARY TO LAW.[4]

Criminal Case No. 01-CR-4214

 sayote plantation in Cadian, Topdac, Atok, Benguet to harvest sayote. The
That sometime in the period from April 28-29,
2001, at Cadian, Topdac, Municipality of Atok, Province of following day, or on April 28, 2001, AAA had the harvested sayote
Benguet, Philippines, and within the jurisdiction of the
transported to Baguio City. Later that night, she and her son stayed at their
Honorable Court, the above-named accused, by means of
force, intimidation and threats, did then and there rented shack and retired early to bed.[7]
willfully, unlawfully and feloniously commit an act of
sexual assault by inserting a flashlight into the vagina of
one [AAA], a thirty six (36) year old woman, against her In the middle of the night, AAA was awakened by a beam of light
will and consent, to her damage and prejudice. coming from the gaps in the walls of the shack directly illuminating her face.

CONTRARY TO LAW.[5] She then inquired who the person was, but nobody answered. Instead, the
light was switched off. After a few minutes, the light was switched on
again.[8] Thereafter, a male voice shouted, Rumwar kayo ditta no saan kayo

On June 21, 2001, accused-appellant, with the assistance of nga rumwar paletpeten kayo iti bala![9] AAA remained seated. Then, the

counsel, pleaded not guilty to both charges. Thereafter, trial on the merits male voice uttered, Lukatam daytoy no saan mo nga lukatan bilangan ka,

ensued. maysa, duwa[10] AAA immediately woke BBB up. Just then, the male voice
said, Pabitaken kayo iti bala.[11] AAA cried out of fear.[12]

During the trial, the prosecution offered the oral testimonies of the
victim, AAA; her 10-year old son, BBB; Ernesto dela Cruz; Police Officer 3 Anxious that the person outside would kill her and her son, AAA lit

James Ruadap; and Dr. Alma Ged-ang. On the other hand, the defense the gas lamp placed on top of the table, and opened the door while her son

presented as its witnesses accused-appellant himself; his mother, Remina; stood beside it. As the door opened, she saw accused-appellant directly in

his sister, Margaret; Hover Cotdi; Jona Canuto; and Pina Mendoza. [6] front of her holding a flashlight. AAA did not immediately recognize
accused-appellant, as his hair was long and was covering his face. She

The Prosecutions Version of Facts invited him to come inside the shack, but the latter immediately held her
hair and ordered her to walk uphill.[13] Helpless and terrified, AAA obeyed

In March 2001, AAA, who was six months pregnant, went home to him. All the while, accused-appellant was behind her.[14]

Butiyao, Benguet, along with her family, to harvest the peppers planted in
their garden. On April 27, 2001, AAA and her son, BBB, returned to their Upon reaching a sloping ground, accused-appellant ordered AAA to
stop. Thereafter, accused-appellant placed the lit flashlight in his pocket and
ordered AAA to remove her clothes. When she refused, accused-appellant
boxed her left eye and removed her clothes. When she also attempted to
stop accused-appellant, the latter angrily slapped her face. Completely
naked, AAA was again ordered to walk uphill.[15]
Upon reaching a grassy portion and a stump about one foot high,
accused-appellant ordered AAA to stop and lie on top of the stump, after
accused-appellant boxed her thighs. Accused-appellant then bent down and
spread open AAAs legs. After directing the beam of the flashlight on AAAs
naked body, accused-appellant removed his pants, lowered his brief to his
knees, went on top of her, and inserted his penis into her vagina. Accused-
appellant threatened to box her if she moves.[16]
Accused-appellant also held AAAs breast, as well as the other parts
of her body. He shifted the flashlight from one hand to another while he
moved his buttocks up and down. AAA cried as she felt severe pain in her
lower abdomen. Accused-appellant stood up and directed the beam of the
flashlight on her after he was satisfied.[17]
Ten minutes later, accused-appellant went on top of AAA again and
inserted his penis into her vagina and moved his buttocks up and down.
After being satisfied, accused-appellant stood up and lit a cigarette.[18]
Afterwards, accused-appellant went on top of AAA again and tried
to insert his penis in the latters vagina. His penis, however, has already
softened. Frustrated, accused-appellant knelt and inserted his fingers in her
vagina. After removing his fingers, accused-appellant held a twig about 10
inches long and the size of a small finger in diameter which he used to pierce
her vagina. Dissatisfied, accused-appellant removed the twig and inserted
the flashlight in her vagina.[19]
After accused-appellant removed the flashlight from AAAs vagina,
he went on top of her again, pressing his elbows on her upper breasts and
boxing her shoulders and thighs. Subsequently, accused-appellant stood up
and warned her not to report the incident to the authorities. Immediately
after, he left her at the scene.[20]
Since she was too weak to walk, AAA rested for about 15 minutes
before she got up and went back to the shack where she immediately woke
her son up. Thereafter, they proceeded to the highway and boarded a jeep
to Camp 30, Atok, Benguet. She also went to Sayangan, Atok, Benguet the
following day to report the incident to the police authorities.[21]
Upon medical examination, Dr. Ged-ang found that AAA had a
subconjunctival hemorrhage on the right eye and multiple head injuries,
which may have been caused by force such as a blow, a punch, or a hard
object hitting the eye. There was also tenderness on the upper part of the
back of AAA, as well as on her left infraclavicular area below the left clavicle,
left flank area or at the left side of the waist, and medial aspect on the inner
part of the thigh. Moreover, there were also multiple linear abrasions, or
minor straight open wounds on the skin of her forearms and legs caused by
sharp objects with rough surface.[22]
 Apart from the external examination, Dr. Ged-ang also conducted
an internal examination of the genitalia of AAA. Dr. Ged-ang found that
there was confluent abrasion on the left and medial aspects of her labia
minora about five centimeters long and a confluent circular abrasion caused
by a blunt, rough object that has been forcibly introduced into the
genitalia.[23]
Version of the Defense
In the morning of April 28, 2001, accused-appellant was allegedly
working in the sayote plantation near his house. At noontime, he went
home to eat his lunch. After having lunch, his mother told him to bring the
pile of sayote she harvested to the edge of the road. Accused-appellant
went to the place where the pile of harvested sayote was placed. However,
when he reached that place, he claimed that he saw AAA gathering
the sayote harvested by his mother and placing them in a sack.[24]
Upon seeing what AAA was doing, accused-appellant shouted at
her, prompting AAA to run away with her son and leave the sack of sayote.
When they left, accused-appellant started placing the harvested sayote in
the sack. He was able to fill eight sacks. Remembering that his mother told
him that he would be able to fill 10 sacks all in all, accused-appellant went
to the shack of AAA after bringing the eight sacks near the road. He
suspected that she and her son were the ones who took the two missing
[25]
sacks of sayote.
When he arrived at the place where AAA and her son were staying,
accused-appellant allegedly saw them packing sayote, and he also
supposedly saw a sack of sayote with the name of his father printed on it.
For this reason, accused-appellant got mad and told AAA to go away and
leave the place because what they were doing was wrong. AAA replied by
saying that she would wait for Hover Cotdi, the owner of
the sayote plantation and the shack, to ask for permission to leave. All this
time, accused-appellant was allegedly speaking in an angry but non-
threatening voice. Nonetheless, while he was confronting AAA, her son ran
into the shack and stayed there.[26]
Before leaving the place, accused-appellant told AAA that the sacks
of sayote belonged to his family, although he decided not to take them back
anymore. He supposedly left after five oclock in the afternoon and arrived
at their house at around seven oclock in the evening. During this time, all his
family members were watching television on Channel 3. Accused-appellant
joined them in watching a Tagalog movie. He then allegedly went to bed at
10 oclock in the evening, while his parents continued to watch television
until 11 oclock in the evening.[27]
The following morning, on April 29, 2001, accused-appellant woke
up between six to seven oclock in the morning. After having breakfast, he
helped his mother clean the sayote farm. At around eight oclock in the
morning, he saw AAA by the road waiting for a ride with a baggage placed
in a carton box. His mother then went down the road and talked to AAA,
 Bureau of Corrections, Muntinlupa City, Metro Manila
leaving accused-appellant behind. He claimed to pity AAA upon seeing her
after the expiration of fifteen (15) days from date of
but could not do anything.[28] promulgation unless otherwise ordered by the court.

Let a copy of this Judgment be furnished the

Ruling of the Trial Court Provincial Jail Warden of Benguet Province for his
information, guidance and compliance.

Between the two conflicting versions of the incident, the trial court SO ORDERED.[29]
gave credence to the version of the prosecution and rendered its Decision
dated February 17, 2006, finding accused-appellant guilty of two counts of
Pursuant to our pronouncement in People v. Mateo,[30] modifying
rape. The decretal portion reads:
the pertinent provisions of the Revised Rules on Criminal Procedure insofar
WHEREFORE, in view of the foregoing, the Court as they provide for direct appeals from the Regional Trial Court to this Court
finds RICKY ALFREDO y NORMAN guilty beyond
reasonable doubt of the crime of Rape in Criminal Case in cases in which the penalty imposed by the trial court is death, reclusion
No. 01-CR-4213 and sentences him to suffer the penalty perpetua, or life imprisonment, the case was transferred, for appropriate
of reclusion perpetua including all the accessory penalties
action and disposition, to the CA.
imposed by law.

The Court, likewise, finds him guilty beyond

On August 17, 2006, accused-appellant filed his Brief for Accused-
reasonable doubt of the crime of Rape in Criminal Case
No. 01-CR-4214 and sentences him to suffer the Appellant,[31] while the People of the Philippines, through the Office of the
indeterminate penalty of imprisonment of three (3) years,
Solicitor General, filed its Brief for the Plaintiff-Appellee[32] on January 18,
two (2) months and one (1) day of prision correccional, as
minimum, and eight (8) years, two (2) months and one (1) 2007.
day of prision mayor, as maximum.

For each count of rape, he shall pay [AAA] the Ruling of the Appellate Court
sum of Fifty Thousand Pesos (Php50,000.00) by way of
civil indemnity and the sum of Fifty Thousand Pesos
(P50,000.00) by way of moral damages. As stated above, the CA, in its Decision dated September 30,
2008, affirmed the judgment of conviction by the trial court.[33]
Pursuant to Administrative Circular No. 4-92-A of
the Court Administrator, the Provincial Jail Warden of
Benguet Province is directed to immediately transfer the
said accused, Ricky Alfredo y Norman to the custody of the

Undaunted, accused-appellant filed a motion for reconsideration,
which was denied by the CA in its Resolution dated March 19, 2009.[34]
On April 21, 2009, accused-appellant filed his Notice of
Appeal [35]
from the CA Decision dated September 30, 2008.
[36]
In our Resolution dated September 14, 2009, we notified the
parties that they may file their respective supplemental briefs if they so
desired. On November 9, 2009, the People of the Philippines manifested
that it is no longer filing a supplemental brief, as it believed that all the issues
involved in the present controversy have been succinctly discussed in
the Brief for the Appellee.[37] On the other hand, on January 26, 2010,
accused-appellant filed his supplemental brief.
The Issues
Accused-appellant contends in his supplemental brief that:
I.
BY THE NATURE OF THE OFFENSE IN THE TWO (2)
INFORMATIONS FILED AGAINST ACCUSED-APPELLANT,
THE LATTER HAS NO OTHER PLAUSIBLE DEFENSE EXCEPT
ALIBI THAT SHOULD NOT JUST BE BRUSHED ASIDE IF
THERE ARE MATERIAL INCONSISTENSIES IN THE CLAIMS
OF THE WITNESSES FOR THE PROSECUTION;
II.
THE DECISION CONVICTING ACCUSED-APPELLANT
HEAVILY RELIED ON THE DEMEANOR OF THE WITNESSES
FOR THE PROSECUTION DURING THE TRIAL WHEN
THE PONENTE OF THE DECISION DID NOT HAVE
ANY OPPORTUNITY TO HEAR THE WITNESSES;
III.
THE THEN AND THERE CONDUCT OF ACCUSED-APPELLANT
IS UNLIKELY TO YIELD A GUILTY VERDICT.[38]
The Courts Ruling
We sustain accused-appellants conviction.
Alibi is an inherently weak defense
In his supplemental brief, accused-appellant contends that he
could not offer any other defense except denial and alibi, as he could not
distort the truth that he was in his house at the time of the alleged rape in
the evening of April 28, 2001 up to the wee hours of April 29, 2001. He
contends that although denial and alibi are the weakest defenses in criminal
cases, consideration should also be given to the fact that denial becomes
the most plausible line of defense considering the nature of the crime of
rape where normally only two persons are involved.[39]
 It should be noted that for alibi to prosper, it is not enough for the accused himself and his or her relatives, friends, and comrades-in-
accused to prove that he was in another place when the crime was arms,[43] and not by credible persons.[44]
committed. He must likewise prove that it was physically impossible for him
As between the statement made in an affidavit and that given in
to be present at the crime scene or its immediate vicinity at the time of its
open court, the latter is superior
commission.[40]

Accused-appellant contends also that there were material

A review of the records in the instant case would reveal that
inconsistencies in the testimonies of the prosecution witnesses and in the
accused-appellant failed to present convincing evidence that he did not
latters respective affidavits, to wit: (1) whether accused-appellants penis
leave his house, which is only about 150 meters away from the shack of AAA,
was erect or not; and (2) whether AAA indeed recognized accused-appellant
in the evening of April 28, 2001. Significantly, it was also not physically
when they were already on the mountain or while they were still in the
impossible for accused-appellant to be present on the mountain where he
shack.[45]
allegedly raped AAA at the time it was said to have been committed.

AAA testified in open court that accused-appellant tried to insert

Moreover, it has been held, time and again, that alibi, as a defense,
his penis into her vagina several times but was unable to do so since his
is inherently weak and crumbles in light of positive identification by truthful
penis has already softened.[46] On the other hand, AAA stated in her affidavit
witnesses.[41] It is evidence negative in nature and self-serving and cannot
that the suspect ordered me to lay [sic] flatly on the ground and there he
attain more credibility than the testimonies of prosecution witnesses who
started to light and view my whole naked body while removing his pant [sic]
testify on clear and positive evidence.[42] Thus, there being no strong and
and tried to insert his pennis [sic] on [sic] my vagina but I wonder it does not
credible evidence adduced to overcome the testimony of AAA, no weight
errect [sic].[47] There is no inconsistency between AAAs testimony and her
can be given to the alibi of accused-appellant.
affidavit. The only difference is that she failed to state in her affidavit that
before accused-appellant unsuccessfully tried to insert his penis into AAAs
In addition, even if the alibi of accused-appellant appears to have
vagina, he had already succeeded twice in penetrating her private organ.
been corroborated by his mother, Remina, and his sister, Margaret, said
defense is unworthy of belief not only because accused-appellant was
There is likewise no incompatibility between AAAs affidavit stating
positively identified by AAA, but also because it has been held that alibi
that she came to know of accused-appellant as the culprit when they were
becomes more unworthy of merit where it is established mainly by the
on the mountain and his flashlight illuminated his face as he lay on top of
her, and her testimony that while they were still in the shack, AAA was not
then sure but already suspected that her rapist was accused-appellant
because of his hair.[48] In other words, AAA was not yet sure whether
accused-appellant was the culprit while they were still in the shack, as she
only became positively certain that it was him when the flashlight
illuminated his face while they were on the mountain.[49]
Nevertheless, discrepancies do not necessarily impair the
credibility of a witness, for affidavits, being taken ex parte, are almost
always incomplete and often inaccurate for lack of searching inquiries by the
investigating officer or due to partial suggestions, and are, thus, generally
considered to be inferior to the testimony given in open court.[50]
The validity of conviction is not adversely affected by the fact that
the judge who rendered judgment was not the one who heard the
witnesses
Accused-appellant contends further that the judge who penned
the appealed decision is different from the judge who heard the testimonies
of the witnesses and was, thus, in no position to render a judgment, as he
did not observe firsthand their demeanor during trial.
We do not agree. The fact that the trial judge who rendered
judgment was not the one who had the occasion to observe the demeanor
of the witnesses during trial, but merely relied on the records of the case,
does not render the judgment erroneous, especially where the evidence on
record is sufficient to support its conclusion.[51] As this Court held in People
v. Competente:
The circumstance that the Judge who rendered
the judgment was not the one who heard the witnesses,
does not detract from the validity of the verdict of
conviction. Even a cursory perusal of the Decision would
show that it was based on the evidence presented during
trial and that it was carefully studied, with testimonies on
direct and cross examination as well as questions from the
Court carefully passed upon.[52] (Emphasis supplied.)
Further, the transcripts of stenographic notes taken during the trial
were extant and complete. Hence, there was no impediment for the judge
to decide the case.
The guilt of accused-appellant has been established beyond
reasonable doubt
After a careful examination of the records of this case, this Court is
satisfied that the prosecutions evidence established the guilt of accused-
appellant beyond reasonable doubt.
 In reviewing the evidence in rape cases, the following
considerations should be made: (1) an accusation for rape can be made with
facility, it is difficult to prove but more difficult for the person, though
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) the evidence
for the prosecution must stand or fall on its own merits and cannot be
allowed to draw strength from the weakness of the evidence for the
[53]
defense. Nonetheless, it is also worth noting that rape is essentially
committed in relative isolation or secrecy; thus, it is most often only the
[54]
victim who can testify with regard to the fact of forced coitus.
In the instant case, accused-appellant is charged with two counts
of rapeone under paragraph 1(a) of Article 266-A of the Revised Penal Code
and the other under par. 2 of Art. 266-A.
Pertinently, the elements of rape under par. 1(a) of Art. 266-A of
the Code are the following: (1) that the offender is a man; (2) that the
offender had carnal knowledge of a woman; and (3) that such act is
accomplished by using force or intimidation.[55]
On the other hand, the elements of rape under par. 2 of Art. 266-A
of the Code are as follows: (1) that the offender commits an act of sexual
assault; (2) that the act of sexual assault is committed by inserting his penis
into another persons mouth or anal orifice or by inserting any instrument or
object into the genital or anal orifice of another person; and that the act of
sexual assault is accomplished by using force or intimidation, among
others.[56]
Notably, the prosecution has sufficiently established the existence
of the foregoing elements. When AAA was called to the witness stand, she
gave a detailed narration of the incident that transpired in the evening
of April 28, 2001 and early morning of April 29, 2001. AAA categorically
asserted that accused-appellant had carnal knowledge of her and even
sexually assaulted her against her will with the use of force, threat, or
intimidation.
Particularly, AAA testified that accused-appellant threatened to
riddle her and her son with bullets if they do not open the door of their
shack. Accused-appellant thereafter forcibly pulled her hair and dragged her
to the mountains. AAA pleaded for her life. Nonetheless, accused-appellant
boxed her every time she did not yield to his demands. He boxed her thighs
forcing AAA to sit, and he threatened to box her if she moves while he
carried out his bestial desires.[57]
AAA testified further that after accused-appellant satisfied his lust,
he sexually assaulted her. He inserted his fingers into her vagina and then
he tried to pierce the same with a twig. Subsequently, he inserted his
flashlight into her vagina.[58]AAA was too weak to stop him. She had
struggled to free herself from accused-appellant from the moment she was
dragged from the shack until they reached the mountains. However,
accused-appellant still prevailed over her. Notably, AAA was six months
pregnant at that time. She was frightened and hopeless.[59]
Also, it should be noted that the findings in the medical
examination of Dr. Ged-ang corroborated the testimony of AAA. While a
medical examination of the victim is not indispensable in the prosecution of
a rape case, and no law requires a medical examination for the successful
prosecution of the case, the medical examination conducted and the
medical certificate issued are veritable corroborative pieces of evidence,
which strongly bolster AAAs testimony.[60]
Moreover, the police found the red t-shirt and blue shorts of AAA
in the place where accused-appellant was said to have removed her clothes.
In addition, AAAs son, BBB, testified as to how accused-appellant
threatened them in the evening of April 28, 2001, how he was able to
identify accused-appellant as the perpetrator, and what his mother looked
like when she returned home in the early morning of April 29, 2001.
According to BBB, his mother was naked except for a dirty white jacket she
was wearing. He also noticed that his mother had wounds and blood all over
her body. All these are consistent with the testimony of AAA. [61]
All told, we accordingly sustain accused-appellants conviction.
Award of Damages
The decision of the CA as to the damages awarded must be
modified. For rape under Art. 266-A, par. 1(d) of the Revised Penal Code, the
CA was correct in awarding PhP 50,000 as civil indemnity and PhP 50,000 as
moral damages. However, for rape through sexual assault under Art. 266-A,
par. 2 of the Code, the award of damages should be PhP 30,000 as civil
indemnity and PhP 30,000 as moral damages.[62]
We explained in People v. Cristobal that for sexually assaulting a
pregnant married woman, the accused has shown moral corruption,
perversity, and wickedness. He has grievously wronged the institution of
marriage. The imposition then of exemplary damages by way of example to
deter others from committing similar acts or for correction for the public
good is warranted.[63] Notably, there were instances wherein exemplary
damages were awarded despite the absence of an aggravating
circumstance. As we held in People v. Dalisay:
Prior to the effectivity of the Revised Rules of
Criminal Procedure, courts generally awarded exemplary
damages in criminal cases when an aggravating
circumstance, whether ordinary or qualifying, had been
proven to have attended the commission of the crime,
even if the same was not alleged in the information. This
is in accordance with the aforesaid Article 2230. However,
with the promulgation of the Revised Rules, courts no
longer consider the aggravating circumstances not alleged
and proven in the determination of the penalty and in the
award of damages. Thus, even if an aggravating
circumstance has been proven, but was not alleged,
courts will not award exemplary damages. x x x
xxxx

Nevertheless, People v. Catubig laid down the
principle that courts may still award exemplary damages
based on the aforementioned Article 2230, even if the
aggravating circumstance has not been alleged, so long as
it has been proven, in criminal cases instituted before the
effectivity of the Revised Rules which remained pending
thereafter. Catubig reasoned that the retroactive
application of the Revised Rules should not adversely
affect the vested rights of the private offended party.
Thus, we find, in our body of jurisprudence,
criminal cases, especially those involving rape,
dichotomized: one awarding exemplary damages, even if
an aggravating circumstance attending the commission of
the crime had not been sufficiently alleged but was
consequently proven in the light of Catubig; and another
awarding exemplary damages only if an aggravating
circumstance has both been alleged and proven following
the Revised Rules. Among those in the first set are People
v. Laciste, People v. Victor, People v. Orilla, People v.
Calongui, People v. Magbanua, People of the Philippines v.
Heracleo Abello y Fortada, People of the Philippines v.
Jaime Cadag Jimenez, and People of the Philippines v. Julio
Manalili. And in the second set are People v. Llave, People
of the Philippines v. Dante Gragasin y Par, and People of
the Philippines v. Edwin Mejia. Again, the difference
between the two sets rests on when the criminal case was
instituted, either before or after the effectivity of the
Revised Rules.
xxxx
Nevertheless, by focusing only on Article 2230 as
the legal basis for the grant of exemplary damages taking
into account simply the attendance of an aggravating
circumstance in the commission of a crime, courts have
lost sight of the very reason why exemplary damages are
awarded. Catubig is enlightening on this point, thus
Also known as punitive or vindictive damages,
exemplary or corrective damages are intended
to serve as a deterrent to serious wrong doings,
and as a vindication of undue sufferings and
wanton invasion of the rights of an injured or a
punishment for those guilty of outrageous
conduct. These terms are generally, but not
always, used interchangeably. In common law,
there is preference in the use of exemplary
damages when the award is to account for
injury to feelings and for the sense of indignity
and humiliation suffered by a person as a result
of an injury that has been maliciously and
wantonly inflicted, the theory being that there
should be compensation for the hurt caused by
the highly reprehensible conduct of the
defendant associated with such circumstances
as willfulness, wantonness, malice, gross
negligence or recklessness, oppression, insult or
fraud or gross fraud that intensifies the injury.
The terms punitive or vindictive damages are
often used to refer to those species of damages
that may be awarded against a person to punish
him for his outrageous conduct. In either case,
these damages are intended in good measure to
deter the wrongdoer and others like him from
similar conduct in the future.
Being corrective in nature, exemplary damages,
therefore, can be awarded, not only in the presence of
an aggravating circumstance, but also where the
circumstances of the case show the highly reprehensible
or outrageous conduct of the offender. In much the same
way as Article 2230 prescribes an instance when
exemplary damages may be awarded, Article 2229, the
 main provision, lays down the very basis of the award.
modified, accused-appellant in Criminal Case No. 01-CR-4213 is ordered to
Thus, in People v. Matrimonio, the Court imposed
exemplary damages to deter other fathers with perverse pay PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP
tendencies or aberrant sexual behavior from sexually
30,000 as exemplary damages. In Criminal Case No. 01-CR-4214, accused-
abusing their own daughters. Also, in People v. Cristobal,
the Court awarded exemplary damages on account of the appellant is likewise ordered to pay PhP 30,000 as civil indemnity, PhP
moral corruption, perversity and wickedness of the 30,000 as moral damages, and PhP 30,000 as exemplary damages.
accused in sexually assaulting a pregnant married woman.
Recently, in People of the Philippines v. Cristino
Caada, People of the Philippines v. Pepito Neverio and The SO ORDERED.
People of the Philippines v. Lorenzo Layco, Sr., the Court
awarded exemplary damages to set a public example, to
serve as deterrent to elders who abuse and corrupt the PRESBITERO J. VELASCO, JR.
youth, and to protect the latter from sexual abuse. Associate Justice

It must be noted that, in the said cases, the Court

used as basis Article 2229, rather than Article 2230, to
justify the award of exemplary damages. Indeed, to
borrow Justice Carpio Morales words in her separate
opinion in People of the Philippines v. Dante Gragasin y
Par, [t]he application of Article 2230 of the Civil
Code strictissimi juris in such cases, as in the present one,
defeats the underlying public policy behind the award of
exemplary damages to set a public example or correction
for the public good.[64] (Emphasis supplied.)

Concomitantly, exemplary damages in the amount of PhP 30,000

should be awarded for each count of rape, in line with prevailing
jurisprudence.[65]

WE CONCUR:
WHEREFORE, the appeal is DENIED. The CA Decision dated
September 30, 2008 in CA-G.R. CR-H.C. No. 02135 finding accused-appellant
Ricky Alfredo guilty of rape is AFFIRMED with MODIFICATIONS. As thus
RENATO C. CORONA
 Chief Justice and CELEDONIA N. TOMAS,
Chairperson Petitioners, Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr.,
and
TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO
Chico-
Associate Justice Associate Justice
Nazario, JJ.
PEOPLE OF
THE PHILIPPINES,
Respondent.

x ---------------------------------------------------- x
JOSE PORTUGAL PEREZ
Associate Justice EUGELIO G. BARAWID, G.R. No. 170518
Petitioner,

- versus - Promulgated:

PEOPLE OF THE PHILIPPINES,

CERTIFICATION
Respondent. October 30, 2006
x ---------------------------------------------------------------------------------------- x
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
DECISION
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
YNARES-SANTIAGO, J.:

Assailed in these consolidated petitions for review are the

RENATO C. CORONA September 19, 2005 Decision[1] of the Sandiganbayan which found
Chief Justice
petitioners guilty of falsification of public document in Criminal Case No.
FIRST DIVISION 27548 and its November 18, 2005 Resolution[2] denying petitioners motion
for new trial.
NESTOR A. BERNARDINO G.R. No. 170453
The facts show that petitioner Nestor A. Benardino (Bernardino) was the
former Municipal Mayor of Guimba, Nueva Ecija and Chairman of the
PreQualification Bid and Awards Committee (PBAC) for the construction of
the extension of the public market of Guimba; while petitioner Eugelio G.
Barawid (Barawid), a Municipal Treasurer was a member of the
PBAC. Petitioner Celedonia N. Tomas (Tomas) was the PBACs acting
Secretary. The other members of the PBAC were Municipal Councilors,
Ernesto T. Mateo and Benito A. Rillo; Municipal Planning and Development
Coordinator Efren N. Fronda; Municipal Budget Officer Abraham P. Coloma;
Municipal Engineer Jose F. Mateo; Municipal Accountant Renato L. Esquivel;
and non-government organization representatives Paulino G. Quindara and
Luis F. Rendon, Jr.
The Minutes of the opening of bids[3] show that on December 8, 1997, the
PBAC members convened at the Municipal Library of Guimba, Nueva
Ecija. The Acting Chairman, assisted by Commission on Audit (COA)
representative Rolando E. Ronquillo (Ronquillo), assessed the qualifications
of the four bidders who participated and thereafter awarded the project to
Mascom Design and Engineering International (MASCOM) whose bid was
determined to be the lowest and most advantageous to the government of
Guimba. The Minutes was signed by petitioner Tomas in her capacity as the
acting Secretary of the PBAC.
On the same date, petitioners Bernardino and Barawid and the other PBAC
[4]
members signed a Prequalification Bid and Award Committee stating
that after due deli[b]eration, the committee resolved as it is hereby
resolved, to recommend [the] Award [of the] Contract [to MASCOM] for
offering the lowest [bid]. Their signatures also appear in an Abstract of
Bidding[5] and Abstract of Proposal[6] both reflecting the names of the four
bidders and their respective bids.
Meanwhile, prior to the construction of the public market
extension, prosecution witness Jose Lucius Pocholo Dizon (Mayor Dizon)
was elected Municipal Mayor of Guimba, Nueva Ecija in the May 1998 local
elections. He thereafter conducted a public bidding for the construction of
the same extension of the public market and awarded the project to KYRO
Builder as the lowest bidder. Consequently, MASCOM filed before the Office
of the Ombudsman a criminal compliant against Mayor Dizon and petitioner
Barawid for violation of Section 3(e) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
In his Rejoinder-Affidavit,[7] Mayor Dizon contended that the award
to KYRO is proper because the project could not be validly given to MASCOM
as there was in fact no competitive public bidding held on December 8,
1997. In support thereof, he attached the similarly dated June 27, 2000
affidavits[8] of former PBAC members, namely, Luis F. Rendon, Jr., Paulino G.
Quindara, Renato L. Esquivel, Jose F. Mateo, Ernesto T. Mateo, Efren N.
Fronda and Abraham P. Coloma, Jr., stating that no public bidding was held
in connection with the construction of the Guimba public market extension
nor was the local PBAC convened on December 8, 1997. Affiants also
declared that the documents in connection with the alleged bidding were
delivered to their residence/office; and that they signed the same upon the

representation of MASCOMs representative that the documents were
necessary for the Philippine National Bank loan application of the
municipality in connection with the construction of the public market. [9]
On the basis of the admission of the said affiants, the Office of the
Ombudsman dismissed the case against Mayor Dizon and petitioner
Barawid and instead filed the instant case for falsification of public
documents under Article 171, paragraph 2 of the Revised Penal Code against
all the members of the PBAC members including the herein petitioners.
The Information charged petitioners and the PBAC members of
falsification by making it appear in the Minutes of the opening of bids,
Prequalification Bid and Award Committee, Abstract of Proposal, and
Abstract of Bidding, that they and COA representative conducted a public
bidding on December 8, 1997, participated in by four bidders, when no such
bidding was in fact conducted, to wit:
That sometime on December 8, 1997, or
immediately prior or subsequent thereto, in Guimba,
Nueva Ecija, Philippines, and within the jurisdiction of this
Honorable Court, accused Celedonia N. Tomas, Acting
Secretary of the Prequalification, Bids and Award
Committee (PBAC) of the Municipal Government of
Guimba, Nueva Ecija; Nestor A. Bernardino, then Mayor
and PBAC Chairman; and the PBAC members, namely:
Benito A. Rillo and Ernesto T. Mateo, both members of the
Sangguniang Bayan; Eugelio G. Barawid, Municipal
Treasurer; Efren N. Fronda, Municipal Planning and
Development Coordinator; Abraham P. Coloma, Municipal
Budget Officer; Jose F. Mateo, Municipal Engineer; Renato
L. Esquivel, Municipal Accountant; and Paulino G.
Quindara and Luis [F.] Rendon, Jr., NGO representative,
while in the performance of and taking advantage of their
official positions, conspiring and confederating with one
another, did then and there, willfully, unlawfully and
feloniously prepare and make it appear in the ABSTRACT
OF BIDDING, the ABSTRACT OF PROPOSAL, the MINUTES
OF THE OPENING OF BIDS and the PBAC
RECOMMENDATION, that a public bidding for the
construction of the New Guimba Public Market Extension
(wet market) was concluded, that four (4) firms, to wit:
1. Bounty Builders
2. M.O.M Enterprise
3. F.L. Reguyal Construction
4. MASCOM Design and Engineering
International
purportedly participated therein and submitted their bids,
that a COA representative was supposedly present during
the opening of the bids, and that the PBAC supposedly
convened and deliberated on the purported bids when, in
truth and in fact, the aforesaid firms and the COA
representative did not so participate and the PBAC did not
actually convene and deliberate on the purported bids, as
in fact, no such public bidding was conducted and said
documents were executed to justify the award of the
contract to build the aforesaid public market extension to
MASCOM Design and Engineering International to the
damage and prejudice of the government.
CONTRARY TO LAW.[10]
Upon arraignment, petitioners and the other PBAC members,
except for Benito A. Rillo who died on December 5, 2001, pleaded not guilty.
 At the trial, prosecution witness and COA representative Ronquillo
declared that he did not attend any public bidding regarding the
[11]
construction of the Guimba public market on December 8, 1997.
admitted, however, that he has no personal knowledge whether or not a
bidding was truly conducted on said date.[12] The same declaration was
made by prosecution witness Mayor Dizon who admitted that he does not
know whether the PBAC conducted a public bidding.[13]
The prosecution also offered in evidence the affidavits of PBAC
members, Luis F. Rendon, Jr., Paulino G. Quindara, Renato L. Esquivel, Jose
F. Mateo, Ernesto T. Mateo, Efren N. Fronda and Abraham P. Coloma, Jr., in
support of its theory that no public bidding was held by the PBAC
on December 8, 1997. Counsel for the said affiants admitted the
genuineness of the signature appearing in the affidavits.[14]
Petitioners and the PBAC members filed their separate motions for leave to
file demurrer to evidence but were denied. They were, however, given a 10
day period within which to file their respective demurrer to evidence
without prior leave of court, subject to the legal consequences under
Section 23, Rule 119 of the Rules of Court. Nevertheless, petitioners and the
PBAC members filed separate demurrer to evidence.
On September 19, 2005, the Sandiganbayan rendered the assailed judgment
of conviction holding that the Affidavits of Luis F. Rendon, Jr., Paulino G.
Quindara, Renato L. Esquivel, Jose F. Mateo, Ernesto T. Mateo, Efren N.
Fronda and Abraham P. Coloma, Jr., as corroborated by the testimonies of
COA representative Ronquillo and Mayor Dizon proved beyond reasonable
doubt that no public bidding was conducted by the PBAC on December 8,
1997. The dispositive portion thereof, states:
He
WHEREFORE, judgment is hereby rendered
finding accused Nestor A. Bernardino, Ernesto T. Mateo,
Eugelio G. Barawid, Efren [N.] Fronda, Abraham [P.]
Coloma, Jr., Jose F. Mateo, Renato [L.] Esquivel, Paulino
[G.] Quindara, Luis [F.] Rendon, Jr. and Celedonia N.
Tomas guilty beyond reasonable doubt of the offense
charged in the Amended Information and, with the
application of the Indeterminate Sentence law and
without any mitigating or aggravating circumstance,
hereby sentencing each of them to suffer the
indeterminate penalty of TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of prision correccional as
minimum to EIGHT (8) YEARS and ONE DAY of prision
mayor as maximum with the accessories thereof and to
pay a fine of TWO THOUSAND PESOS (P2,000.00) with
costs against the accused.
SO ORDERED.[15]
Petitioners Bernardino and Tomas filed a motion for new trial[16] on the basis
of the alleged newly discovered evidence consisting of the affidavits
executed in 2003 to 2005 by Renato L. Esquivel, Ernesto T. Mateo, Efren N.
Fronda, Jose F. Mateo, Abraham P. Coloma, Jr., Eugelio G. Barawid, [17] Luis
F. Rendon, Jr.,[18] and Paulino G. Quindara,[19] in connection with a separate
administrative case filed against said affiants for dishonesty and grave
misconduct before the Office of the Ombudsman. Affiants stated in the said
affidavits that there was in fact a public bidding held on December 8, 1997;
and that they executed their June 27, 2000 affidavit stating that no bidding
occurred, because of the fear and intimidation employed by Mayor Dizon
who needed said affidavits to bolster his defense in the case for violation of
the Anti-Graft and Corrupt Practices Act filed against him. Petitioners
Bernardino and Tomas claimed they were not party to the said
administrative case against the affiants and that it was only after the
promulgation of the decision in the falsification case that affiants apologized
and informed them of the existence of said 2003 and 2005 affidavits.
Petitioner Barawid and the other PBAC members also filed their separate
motion for new trial[20] on the ground of alleged errors of law and
irregularities in the trial of their case.
On November 18, 2005, the Sandiganbayan denied the separate
motions for new trial.[21] Renato Esquivel, Jose Mateo, Efren Fronda, Luis
Rendon, Jr., and Paulino Quindara filed a petition before this Court docketed
as G.R. No. 170499 but was denied in a Resolution dated June 26,
2006. Their motion for reconsideration was denied with finality
on September 18, 2006.
Petitioner Barawid filed a separate petition docketed as G.R. No. 170518
which was consolidated with the petition of Bernardino and Tomas in G.R.
No. 170453.[22]
The issue is whether the guilt of petitioners was proven beyond reasonable
doubt.
In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved. To justify the conviction of the
accused, the prosecution must adduce the quantum of evidence sufficient
to overcome the constitutional presumption of innocence. The prosecution
must stand or fall on its evidence and cannot draw strength from the
weakness of the evidence of the accused. Accordingly, when the guilt of the
accused-appellants have not been proven with moral certainty, it is our
policy of long standing that their presumption of innocence must be favored
and their exoneration be granted as a matter of right.[23]
In the instant case, petitioners were charged with falsification
under paragraph 2, Article 171 of the Revised Penal Code, by causing it to
appear that persons have participated in any act or proceeding when they
did not in fact so participate. Its elements are: (1) that the offender is a
public officer, employee or notary public; (2) that he takes advantage of his
official position; (3) that he falsifies a document by causing it to appear that
a person or persons have participated in any act or proceeding when they
did not in fact so participate.[24]
The evidence presented by the prosecution to establish that no
bidding was conducted on December 8, 1997 were the June 27, 2000
affidavits of Luis F. Rendon, Jr., Paulino G. Quindara, Renato L. Esquivel, Jose
F. Mateo, Ernesto T. Mateo, Efren N. Fronda and Abraham P. Coloma, Jr. The
testimonies of COA representative Ronquillo and Mayor Dizon could not be
considered for purposes of determining whether a public bidding was

indeed held on that day because of their admission that they do not have
personal knowledge whether or not said bidding was indeed conducted.
Pertinent portions of the similarly worded affidavit of Luis F.
Rendon, Jr., and Paulino G. Quindara, reads:
5) That the truth of the matter is that no public
bidding for the contract to construct the new public
market [extension] x x x of the Municipality of Guimba,
Nueva Ecija was actually held or conducted on 08
December 1997 nor was the Local PBAC convened in
connection therewith, and that bidding documents
relative thereto purporting to show that a public bidding
was conducted in accordance with the applicable laws,
rules and regulations on public bidding and award of
contracts were hand delivered to me in my residence by a
representative of Mascom, a certain Caloy Santos for my
signature.
6) That I have no knowledge of and/or
participation in the preparation of the subject bidding
documents, except my signature thereon.[25]
Renato L. Esquivel deposed that:
3. That no actual public bidding was held and/or
conducted on 08 December 1997 in connection with the
contract for the construction of the new public market
[extension] x x x of the Municipality of Guimba, Nueva
Ecija as supported by the following:
a. The Office of the Municipal
Accountant of the Municipality of Guimba,
Nueva Ecija, was not furnished any
communication/letters/notice stating that such
public bidding will be conducted which is
normally done before any public bidding is held.
b. The covering public bidding
documents were personally delivered to me in
my residence by a representative of Mascom
Design & Engineering International for my
signature.
c. I have no knowledge of and/or
participation in the preparation of the covering
public bidding documents allegedly held on 08
December 1997, except for my signature
thereon.
d. The covering public bidding
documents were not signed by the assigned
Commission on Audit representative.[26]
Jose F. Mateo, Efren N. Fronda and Abraham P. Coloma, Jr., similarly averred
that:
3. That no actual public bidding was held and/or
conducted on 08 December 1997 in connection with the
contract for the construction of the new public market
[extension] x x x of the Municipality of Guimba, Nueva
Ecija.
4. That the covering bidding documents for the public
bidding allegedly held on 08 December 1997 were hand
delivered to me by a representative of Mascom Design &
Engineering International (Mascom for brevity) in my
office for signature.[27]
Likewise the Affidavit of Ernesto T. Mateo, reads:

3) That no actual public bidding was held/conducted on 08
December 1997 in connection with the contract for the
construction of the new public market [extension] x x x of
the Municipality of Guimba, Nueva Ecija.
4) That the covering bidding documents for the alleged
public bidding conducted on 08 December 1997 were
signed by me in my residence.[28]
As can be gathered from the foregoing, the affiants declared that no public
bidding was held on December 8, 1997. However, said declaration is merely
an expression of an opinion and not a fact considering that like prosecution
witnesses Ronquillo and Mayor Dizon, they also have no personal
knowledge as to whether or not a bidding was indeed conducted at the
Municipal Library of Guimba, Nueva Ecija on December 8, 1997. Pursuant to
Section 48, Rule 130 of the Rules of Court, the opinion of witnesses, as in
the instant case, is not admissible. Since affiants were not in the place where
the alleged bidding was held, they are not in the position to declare with
moral certainty that no such bidding in fact occurred. Their statements that
they signed the documents showing that they participated in the
determination of the lowest bidder with knowledge that they did not in fact
so participate therein, bind only them and not petitioners whose
whereabouts on December 8, 1997 were not established to be known to
said affiants. And while the Information alleged conspiracy such that the
acts of the affiants may be attributed as well to petitioners Bernardino and
Tomas, the same cannot be considered against said petitioners inasmuch as
no evidence was presented by the prosecution to establish
conspiracy. Conspiracy must be established by positive and conclusive
evidence. It cannot be based on mere conjectures but must be established
as a fact.[29]
Under Section 36, Rule 130 of the same Rules, witnesses can testify
only to those facts which they know of their personal knowledge, that is,
which is derived from their own perception, except as otherwise provided
by the rules. They are not generally allowed to testify on their opinions or
conclusions but must state facts within their knowledge as it is the province
of the court to make deductions from pertinent facts placed in evidence and
to decide matters directly in issue. Their testimony must be confined to
statements of concrete facts within their own observation, knowledge, and
recollection that is, facts perceived by the use of their own senses as
distinguished from their opinions, inferences, impressions and conclusions
drawn from such facts, which are incompetent and inadmissible.[30] While
there are exceptions[31] to the rule on inadmissibility of opinions, the subject
declarations in the instant case is not one of them.
Moreover, the evidence showing that seven members of the PBAC did not
attend the public bidding does not prove beyond reasonable doubt that
petitioner Tomas as acting Secretary and the other three members, that is,
the deceased Benito A. Rillo, and herein petitioners Bernardino and
Barawid, did not convene on December 8, 1997. Otherwise, stated, the
absence of the seven PBAC members did not eliminate the possibility that
the rest of the members convened and carried out the public bidding with
four participating bidders. Under the equipoise rule, where the evidence on
an issue of fact is in equipoise or there is doubt on which side the evidence
preponderates, the party having the burden of proof, which in this case is
the prosecution, loses. The equipoise rule finds application if, as in the
present case, the inculpatory facts and circumstances are capable of two or
more explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, for then the evidence does
not fulfill the test of moral certainty, and does not suffice to produce a
conviction.[32]
In sum, the Court finds that petitioners Bernardino and Barawid
must be acquitted considering that the prosecution failed to prove their guilt
beyond moral certainty. The law, to guard against injustice, requires that the
offense be established by evidence beyond reasonable doubt. It is a serious
matter, not only to a party, but to the state as well, to take a person from
the ordinary avocations of life, brand him a felon, and deprive him of his
liberty, appropriate his labor, and cast a cloud upon his future life, and
humiliate his relatives and friends. To authorize the state in doing this, there
[33]
must be no reasonable doubt on the accuseds guilt.
However, the same cannot be said with respect to petitioner
Tomas. Even if we assume that all the PBAC members attended the bidding,
including those who executed an affidavit to the contrary, petitioner Tomas
is still liable for falsification.Note that she was the only one who signed the
Minutes of the opening of bids which stated, among others, that COA
representative Ronquillo attended the public bidding on December 8,
1997. As acting Secretary of the PBAC she has the duty to prepare or
intervene in the preparation of the Minutes of the meetings of the PBAC
which should be recorded pursuant to Section 37[34] of the Local
Government Code. In making it appear that COA representative Ronquillo
attended the bidding when the latter categorically testified that he never
attended a public bidding in the Municipality of Guimba, Nueva Ecija on
December 8, 1997, petitioner Tomas took advantage of her official
position,[35] rendering her liable for falsification under Article 171 paragraph
2 of the Revised Penal Code. Finding the testimony of COA representative
Ronquillo to be convincing and there being no ill motive shown that would
impel him to perjure himself, the Court gives credence to his declaration and
sustains the judgment of conviction against petitioner Tomas.
In the same vein, petitioner Tomas motion for new trial was
correctly denied by the Sandiganbayan. The evidence presented in support
of said motion was that a public bidding was truly conducted and that the
PBAC members attended the same.However, this has no bearing on the
culpability of petitioner Tomas which is predicated on her untruthful
declaration that the COA representative attended the bidding, regardless of
the presence or absence of the PBAC members.
Under Article 171 of the of the Revised Penal Code, falsification is
punishable with prision mayor and a fine not to exceed P5,000.00. There
being no modifying circumstance in the instant case, the penalty of
petitioner Tomas shall be imposed in its medium period, ranging from 8
years and 1 day to 10 years. Applying the Indeterminate Sentence
Law,[36] she is entitled to an indeterminate penalty the minimum of which
may be fixed anywhere within the range of the penalty next lower in degree
 WE CONCUR:
to prision mayor, which is prision correccional with a duration of 6 months
and 1 day to 6 years. Petitioner Tomas is therefore sentenced to suffer the
penalty of 6 months and 1 day of prision correccional to 8 years and 1 day
ARTEMIO V. PANGANIBAN
of prision mayor. Chief Justice
Chairperson

WHEREFORE, the September 19, 2005 Decision of the

Sandiganbayan in Criminal Case No. 27548 is REVERSED and SET MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
ASIDE with respect to petitioners Nestor A. Bernardino and Eugelio G.
Barawid who are ACQUITTED of the crime of falsification under Article 171
paragraph 2 of the Revised Penal Code on the ground of reasonable doubt. MINITA V. CHICO-NAZARIO
Associate Justice

Insofar as petitioner Celedonia N. Tomas is concerned, the

September 19, 2005 Decision of the Sandiganbayan in Criminal Case No.
27548 finding her guilty of the crime of falsification under Article 171
paragraph 2 of the Revised Penal Code is AFFIRMED with MODIFICATION as
to the indeterminate penalty which is fixed at 6 months and 1 day of prision
correccional to 8 years and 1 day of prision mayor.
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts
Division.

SO ORDERED. ARTEMIO V. PANGANIBAN

Chief Justice

CONSUELO YNARES-
SANTIAGO
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1960 November 26, 1948
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORENTINO ABILONG, defendant-appellant.
Carlos Perfecto for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor
Manuel Tomacruz for appellee.
MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of First Instance of
Manila with evasion of service of sentence under the following
information:
That on or about the 17th day of September, 1947, in the
City of Manila, Philippines, the said accused, being then a
convict sentenced and ordered to serve two (2) years, four
(4) months and one (1) day of destierro during which he
should not enter any place within the radius of 100
kilometers from the City of Manila, by virtue of final judgment
rendered by the municipal court on April 5, 1946, in criminal
case No. B-4795 for attempted robbery, did then and there
wilfully, unlawfully and feloniously evade the service of said
sentence by going beyond the limits made against him and
commit vagrancy.
Contrary to law.
Upon arraignment he pleaded guilty and was sentenced to two (2)
years, four (4) months and one (1) day of prision correccional, with
the accessory penalties of the law and to pay the costs. He is
appealing from that decision with the following assignment of error:
1. The lower court erred in imposing a penalty on the
accused under article 157 of the Revised Penal Code, which
does not cover evasion of service of "destierro."
Counsel for the appellant contends that a person like the accused
evading a sentence of destierro is not criminally liable under the
provisions of the Revised Penal Code, particularly article 157 of the
said Code for the reason that said article 157 refers only to persons
who are imprisoned in a penal institution and completely deprived of
their liberty. He bases his contention on the word "imprisonment"
used in the English text of said article which in part reads as follows:
Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be
imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by
reason of final judgment.
The Solicitor General in his brief says that had the original text of the
Revised Penal Code been in the English language, then the theory
of the appellant could be uphold. However, it is the Spanish text that
is controlling in case of doubt. The Spanish text of article 157 in part
reads thus:
ART. 157. Quebrantamiento de sentencia. Sera castigado
con prision correccional en sus grados medio y maximo el
sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por
sentencia firme; . . . .
We agree with the Solicitor General that inasmuch as the Revised
Penal Code was originally approved and enacted in Spanish, the
Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is
clear that the word "imprisonment" used in the English text is a
wrong or erroneous translation of the phrase "sufriendo privacion de
libertad" used in the Spanish text. It is equally clear that although the
Solicitor General impliedly admits destierro as not constituting
imprisonment, it is a deprivation of liberty, though partial, in the
sense that as in the present case, the appellant by his sentence
of destierro was deprived of the liberty to enter the City of Manila.
This view has been adopted in the case of People vs. Samonte, No.
36559 (July 26, 1932; 57 Phil., 968) wherein this Court held, as
quoted in the brief of the Solicitor General that "it is clear that a
person under sentence of destierro is suffering deprivation of his
liberty and escapes from the restrictions of the penalty when he
enters the prohibited area." Said ruling in that case was ratified by
this Court, though, indirectly in the case of People vs. Jose de Jesus,
(45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one
evades the service of his sentence of destierro when he enters the
prohibited area specified in the judgment of conviction, and he
cannot invoke the provisions of the Indeterminate Sentence Law
which provides that its provisions do not apply to those who shall
have escaped from confinement or evaded sentence.
In conclusion we find and hold that the appellant is guilty of evasion
of service of sentence under article 157 of the Revised Penal Code
(Spanish text), in that during the period of his sentence
of destierro by virtue of final judgment wherein he was prohibited
from entering the City of Manila, he entered said City.
Finding no reversible error in the decision appealed from, the same
is hereby affirmed with costs against the appellant. So ordered.
Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
The legal question raised in this case is whether or not appellant, for
having violated his judgment of destierro rendered by the Municipal
Court of Manila, can be sentenced under article 157 of the Revised
Penal Code which reads as follows:
Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be
imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by
reason of final judgment. However, if such evasion or
escape shall have taken place by means of unlawful entry,
by breaking doors, windows, gates, walls, roofs, or floors, or
by using picklocks, false keys, disguise, deceit, violence or
intimidation, or through connivance with other convicts or
employees of the penal institution, the penalty shall
be prision correccional in its maximum period.
Appellant invokes in his favor the negative opinion of author
Guillermo Guevara (Revised Penal Code, 1946, p. 322). This
negative position is supported by another author, Ambrosio Padilla
(Revised Penal Code annotated, p. 474).
The prosecution invokes the decision of this Court in People vs. De
Jesus, L-1411,2promulgated April 16, 1948, but said decision has no
application because in said case the legal question involved in the
case at bar was not raised. The Supreme Court did not consider the
question of interpretation of the wording of article 157. Undoubtedly,
there was occasion for considering the question, but the Court
nevertheless failed to do so. This failure to see the question, at the
time, is only an evidence that the tribunal is composed of human
beings for whom infallibility is beyond reach.
The prosecution maintains that appellant's contention, supported by
two authors who have considered the question, although tenable
under the English text of article 157, is not so under the Spanish text,
which is the one controlling because the Revised Penal Code was
originally enacted by the Legislature in Spanish.
There is no quarrel, therefore, that under the above quoted English
text, the appellant is entitled to acquittal. The question now is
whether or not the Spanish text conveys a thing different from that
which can be read in the English text. The Spanish text reads as
follows:
ART. 157. Quebrantamiento de sentencia. Sera castigado
con prision correccional en sus grados medio y maximo el
sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por
sentencia firme; pero si la evasion o fuga se hubiere llevado
a efecto con escalamiento, fractura de puertas, ventanas,
verjas, paredes, techos o suelos, o empleado ganzuas,
llaves falsas, disfraz, engano, violencia o intimidacion, o
poniendose de acuerdo con otros sentenciados o
dependientes del establecimiento donde a hallare recluido la
pena sera prision correccional en su grado maximo.
The question boils down to the words "fugandose mientras estuviere
sufriendo privacion de libertad por sentencia firme," which are
translated into English "by escaping during the term of his
imprisonment by reason of final judgment." The prosecution
contends that the words "privacion de libertad" in the Spanish text is
not the same as the word "imprisonment" in the English text, and that
while "imprisonment" cannot include destierro, "privacion de libertad"
may include it.
The reason is, however, the result of a partial point of view because
it obliterates the grammatical, logical, ideological function of the
words "fugandose" and "by escaping" in the Spanish and English
texts, respectively. There should not be any question that, whatever
meaning we may want to give to the words "privacion de libertad," it
has to be conditioned by the verb "fugandose," (by escaping).
"Privacion de libertad" cannot be considered independently of
"fugandose."
There seems to be no question that the Spanish "fugandose" is
correctly translated into the English "by escaping." Now, is there any
sense in escaping from destierro or banishment, where there is no
enclosure binding the hypothetical fugitive? "Fugandose" is one of
the forms of the Spanish verb "fugar," to escape. The specific idea of
"evasion" or "escape" is reiterated by the use of said words after the
semi-colon in the Spanish text and after the first period in the English
text. Either the verb "to escape" or the substantive noun "escape"
essentially pre-supposes some kind of imprisonment or confinement,
except figuratively, and Article 157 does not talk in metaphors or
parables.
"To escape" means "to get away, as by flight or other conscious
effort; to break away, get free, or get clear, from or out of detention,
danger, discomfort, or the like; as to escape from prison. To issue
from confinement or enclosure of any sort; as gas escapes from the
mains." (Webster's New International Dictionary.)
"Escape" means "act of escaping, or fact or having escaped; evasion
of or deliverance from injury or any evil; also the means of escape.
The unlawful departure of a prisoner from the limits of his custody.
When the prisoner gets out of prison and unlawfully regains his
liberty, it is an actual escape." (Webster's New International
Dictionary.)
"Evasion" means "escape." (Webster's New International Dictionary.)
.
The "destierro" imposed on appellant banished him from Manila
alone, and he was free to stay in all the remaining parts of the
country, and to go and stay in any part of the globe outside the
country. With freedom to move all over the world, it is farfetched to
allege that he is in any confinement from which he could escape.
The words "privacion de libertad" have been correctly translated into
the English "imprisonment," which gives the idea exactly conveyed
by "privacion de libertad" in the Spanish text. Undoubtedly, the
drafters of the latter could have had used a more precise Spanish
word, but the literary error cannot be taken as a pretext to give to the
less precise words a broader meaning than is usually given to them.
"Privacion de libertad," literally meaning "deprivation of liberty or
freedom," has always been used by jurist using the Spanish
language to mean "imprisonment." They have never given them the
unbounded philosophical scope that would lead to irretrievable
absurdities.
Under that unlimited scope, no single individual in the more than two
billion inhabitants of the world can be considered free, as the freest
citizen of the freest country is subject to many limitations or
deprivations of liberty. Under the prosecution's theory, should an
accused, sentenced to pay a fine of one peso, evade the payment of
it, because the fine deprives him of liberty to dispose of his one peso,
he will be liable to be punished under article 157 of the Revised
Penal Code to imprisonment of from more that two years to six
years. The iniquity and cruelty of such situation are too glaring and
violent to be entertained for a moment under our constitutional
framework.
There is no gainsaying the proposition that to allow the violation of a
sentence of destierro without punishment is undesirable, but even
without applying article 157 of the Revised Penal Code, the act of the
appellant cannot remain unpunished, because his violation of the
sentence of destierro may be punished as contempt of court, for
which imprisonment up to six months is provided.
It is deplorable that article 157 should not provide for a situation
presented in this case, but the gap cannot be filled by this Court
without encroaching upon the legislative powers of Congress.
Perhaps it is better that evasions of sentence be punished, as
provided by the old Penal Code, by an increased in the evaded
penalty. This will be more reasonable that the penalties provided by
article 157, which appear to be disproportionate and arbitrary,
because they place on equal footing the evader of a sentence of one
day of imprisonment and a life-termer, one who commits an
insignificant offense and one who perpetrates the most heinous
crime. At any rate, this is a problem for Congress to solve.
The appealed decision should be set aside.
BRIONES, J., concurring:
I concur in the foregoing dissenting opinion, because evidently the
word "fugandose" in the Spanish text refers to imprisonment, not
to destierro.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 39085 September 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle,
vs.
ANTONIO YABUT, defendant-appellant.
Felipe S. Abeleda for appellant.
Office of the Solicitor-General Hilado for appellee.
BUTTE, J.:
This is an appeal from the judgment of the Court of First Instance of
Manila, convicting the appellant of the crime of murder and
assessing the death penalty.
The appellant, Yabut, was charged in the Court of First Instance of
Manila with the crime of murder upon the following information:
That on or about the 1st day of August, 1932, in the City of
Manila, Philippine Islands, the accused Antonio Yabut, then
a prisoner serving sentence in the Bilibid Prison, in said city,
did then and there, with intent to kill, wilfully, unlawfully,
feloniously and treacherously, assault, beat and use
personal violence upon one Sabas Aseo, another prisoner
also serving sentence in Bilibid, by then and there hitting the
said Sabas Aseo suddenly and unexpectedly from behind
with a wooden club, without any just cause, thereby
fracturing the skull of said Sabas Aseo and inflicting upon
 him various other physical injuries on different parts of the
body which caused the death of the latter about twenty-four
(24) hours thereafter.
That at the time of the commission of this offense, the said
Antonio Yabut was a recidivist, he having previously been
convicted twice of the crime of homicide and once of serious
physical injuries, by virtue of final sentences rendered by
competent tribunals.
Upon arraignment, the accused plead not guilty. The court below
made the following findings of fact which, from an independent
examination of the entire testimony, we are convinced, are supported
by the evidence beyond reasonable doubt:
La brigada de presos, conocida como Brigada 8-A Carcel, el
1. de agosto de 1932, estaba compuesta de unos 150 o
mas penados, de largas condenas, al mando del preso Jose
Villafuerte, como Chief Squad Leader, y del preso Vicente
santos, como su auxiliar. forman parte de esta brigada el
occiso Sabas Aseo, o Asayo, el acusado Antonio Yabut y los
presos llamados Apolonio Saulo, Isaias Carreon, Melecio
Castro, Mateo Bailon y los moros Taladie y Hasan.
Entre siete y media y ocho de la noche de la fecha de autos,
estando ya cerrado el pabellon de la brigada, pues se
aproximaba la hora del descanso y silencio dentro de la
prision, mientras el jefe bastonero Villafuerte se hallaba
sentado sobre su mesa dentro de la brigada, vio al preso
Carreon cerca de el, y en aquel instante el acusado Yabut,
dirigiendose a Carreon, le dijo que, si no cobrada a uno que
la debia, el (Yabut) le abofetearia. El jefe bastonero
Villafuerte trato de imponer silencio y dijo a los que hablaban
que se apaciguaran; pero, entre tanto, el preso Carreon se
encaro con el otro preso Saulo cobrandole dos cajetillas de
cigarillos de diez centimos cada una que le debia. Saulo
contesto que ya le pagaria, pero Carreon, por toda
contestacion, pego en la cara a saulo y este quedo
desvanecido. En vista de esto, el jefe bastonero se dirigio a
su cama para sacar la porra que estaba autorizado a llevar.
Simultaneamente Villafuerte vio que el preso Yabut pegaba
con un palo (Exhibit C) al otro preso Sabas Aseo, o Asayo,
primeramente en la nuca y despues en la cabeza, mientras
estaba de espaldas el agregido Sabas, quien, al recibir el
golpe en la nuca, se inclino hacia delante, como si se
agachara, y en ese momento el acusado Yabut dio un paso
hacia delante y con el palo de madera que portaba dio otro
golpe en la cabeza a Sabas Aseo, quien cayo al suelo.
El jefe bastonero Villafuerte se acerco al agresor Yabut para
desarmarle, pero este le dijo: "No te acerques; de otro
modo, moriras." No obstante la actitud amenazadora de
Yabut, Villafuerte se acerco y Yabut quiso darle un golpe
que iba dirigido a la cabeza, pero Villafuerte lo pudo desviar
pcon la porra que Ilevaba. Los dos lucharon y Ilegaron a
abrazarse hasta que se le deslizo a Villafuerte la porra que
llevaba. Continuaron luchando ambos y el acusado Yabut
llego a soltar el palo Exhibit C con que acometia a Villafuerte
y habia malherido al preso Sabas Aseo. Despues de
aquello, Yabut consiguio zafarse de Villafuerte y se dirigio al
otro extremo de la brigada, escondiendose dentro del bao y
alli fue cogido inmediatamente despues del suceso por el
preso Proceso Carangdang, que desempenaba el cargo de
sargento de los policias de la prision.
We reject, as unworthy of belief, the testimony of Yabut that it was
Villafuerte, not he, who gave the fatal blow to the deceased Aseo.
The testimonies of Santiago Estrada, resident physician of the
Bureau of Prisons and Dr. Pablo Anzures of the Medico Legal
Department of the University of the Philippines, clearly establish that
the death of Aseo was caused by subdural and cerebral
hemorrhages following the fracture of the skull resulting from the
blow on the head of Aseo. They further confirm the testimony of the
four eyewitnesses that the deceased was struck from behind.
On appeal to this court, the appellant advances the following
assignments of error:
 1. The lower court erred in applying article 160 of the
Revised Penal Code.
2. The lower court erred in holding that the evidence of the
defense are contradictory and not corroborated.
3. The lower court erred in holding that the crime of murder
was established by appreciating the qualifying circumstance
of alevosia.
4. The lower court erred in finding the accused guilty of the
crime of murder beyond reasonable doubt.
In connection with the first assignment of error, we quote article 160
of the Revised Penal Code, in the Spanish text, which is decisive:
Comision de un nuevo delito durante el tiempo de la
condena por otro anterior Pena. Los que comentieren
algun delito despues de haber sino condenados por
sentencia firme no empezada a cumpir, o durante el tiempo
de su condena, seran castigados con la pena sealada por
la ley para el nuevo delito, en su grado maximo, sin perjuicio
de lo dispuesto en la regla 5.a del articulo 62.
El penado conprendidoen este articulo se no fuere un
delincuente habitual sera indultado a los setenta aos, si
hubiere ya cumplido la condena primitiva, o cuando llegare a
cumplirla despues de la edad sobredicha, a no ser que por
su conducta a por otras circunstancias no fuere digno de la
gracia.
The English translation of article 160 is as follows:
Commission of another crime during service of penalty
imposed for another previous offense Penalty. Besides
the provisions of rule 5 of article 62, any person who shall
commit a felony after having been convicted by final
judgment, before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum period
of the penalty prescribed by law for the new felony.
Any convict of the class referred to in this article, who is not
a habitual criminal, shall be pardoned at the age of seventy
years if he shall have already served out his original
sentence, or when he shall complete it after reaching said
age, unless by reason of his conduct or other circumstances
he shall not be worthy of such clemency.
The appellant places much stress upon the word "another"
appearing in the English translation of the headnote of article 160
and would have us accept his deduction from the headnote that
article 160 is applicable only when the new crime which is committed
by a person already serving sentence is different from the crime for
which he is serving sentence. Inasmuch as the appellant was serving
sentence for the crime of homicide, the appellant contends the court
below erred in applying article 160 in the present case which was a
prosecution for murder (involving homicide). While we do not
concede that the appellant is warranted in drawing the deduction
mentioned from the English translation of the caption of article 160, it
is clear that no such deduction could be drawn from the caption.
Apart from this, however, there is no warrant whatever for such a
deduction (and we do not understand the appellant to assert it) from
the text itself of article 160. The language is plain and unambiguous.
There is not the slightest intimation in the text of article 160 that said
article applies only in cases where the new offense is different in
character from the former offense for which the defendant is serving
the penalty.
It is familiar law that when the text itself of a statute or a treaty is
clear and unambiguous, there is neither necessity nor propriety in
resorting to the preamble or headings or epigraphs of a section of
interpretation of the text, especially where such epigraphs or
headings of sections are mere catchwords or reference aids
indicating the general nature of the text that follows. (Cf. In re Estate
of Johnson, 39 Phil., 156, 166.) A mere glance at the titles to the
articles of the Revised Penal code will reveal that they were not
intended by the Legislature to be used as anything more than
catchwords conveniently suggesting in a general way the subject
matter of each article. Being nothing more than a convenient index to
the contents of the articles of the Code, they cannot, in any event
have the effect of modifying or limiting the unambiguous words of the
text. Secondary aids may be consulted to remove, not to create
doubt.
The remaining assignments of error relate to the evidence. We have
come to the conclusion, after a thorough examination of the record,
that the findings of the court below are amply sustained by the
evidence, except upon the fact of the existence of treachery
(alevosia). As some members of the court entertain a reasonable
doubt that the existence of treachery (alevosia) was established, it
results that the penalty assessed by the court below must be
modified. We find the defendant guilty of homicide and, applying
article 249 of the Revised Penal Code in connection with article 160
of the same, we sentence the defendant- appellant to the maximum
degree of reclusion temporal, that is to say, to twenty years of
confinement and to indemnify the heirs of the deceased Sabas Aseo
(alias Sabas Asayo), in the sum of P1,000. Costs de oficio.
Avancea, C.J., Street, Malcolm, Villa-Real, Abad Santos, Hull,
Vickers, and Imperial, JJ., concur.
EN BANC
G.R. No. L-38725 October 31, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-
Appellee, vs. PEDRO MANABA, Defendant-Appellant.
Jose Ma. Cavanna for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of Judge Eulalio Garcia in
this Court of First Instance of Oriental Negros in criminal
case No. 1827 dated November 15, 1932, finding the
defendant guilty of rape and sentencing him to suffer
seventeen years and four months of reclusion temporal, and
the accessory penalties of the law, to indemnify the
offended party, Celestina Adapon, in the amount of P500, to
maintain the offspring, if any, at P5 a month until said
offspring should become of age, and to pay the
costs.chanroblesvirtualawlibrary chanrobles virtual law
library
The defendant appealed to this court, and his attorney de
oficio now makes the following assignments of error:
1. El juzgado a quo erro al no estimar en favor del acusado
apelante la defensa de double jeopardy o legal jeopardy que
ha interpuesto.chanroblesvirtualawlibrary chanrobles virtual
law library
2. El Juzgado a quo erro al no declarar insuficientes las
pruebas de identificacion del acusado
apelante.chanroblesvirtualawlibrary chanrobles virtual law
library
3. El Juzgado a quo tambien erro al pasar por alto las
incoherencias de los testigos de la acusacion y al no
declarar que no se ha establecido fuera de toda duda la
responsabilidad del
apelante.chanroblesvirtualawlibrary chanrobles virtual law
library
4. El Juzgado a quo erro al condenar al acusado apelante
por el delito de violacion y al no acceder a su mocion de
nueva vista.
It appears that on May 10, 1932, the chief of police of
Dumaguete subscribed and swore to a criminal complaint
wherein he charged Pedro Manaba with the crime of rape,
committed on the person of Celestina Adapon. This
complaint was filed with the justice of the peace of
Dumaguete on June 1, 1932 and in due course the case
reached the Court of First Instance. The accused was tried
and convicted, but on motion of the attorney for the
defendant the judgment was set aside and the case
dismissed on the ground that the court had no jurisdiction
over the person of the defendant or the subject matter of
the action, because the complaint had not been filed by the
offended party, but by the chief of police (criminal case No.
1801).chanroblesvirtualawlibrary chanrobles virtual law
library
On August 17, 1932, the offended girl subscribed and swore
to a complaint charging the defendant with the crime of
rape. This complaint was filed in the Court of First Instance
(criminal case No. 1872), but was referred to the justice of
the peace of Dumaguete for preliminary investigation. The
defendant waived his right to the preliminary investigation,
but asked for the dismissal of the complaint on the ground
that he had previously been placed in jeopardy for the same
offense. This motion was denied by the justice of the peace,
and the case was remanded to the Court of First Instance,
where the provincial fiscal in an information charged the
defendant with having committed the crime of rape as
follows:
Que en o hacia la noche del dia 9 de mayo de 1932, en el
Municipio de Dumaguete, Provincia de Negros Oriental, Islas
Filipinas, y dentro de la jurisdiccion de este Juzgado. el
referido acusado Pedro Manaba, aprovechandose de la
oscuridad de la noche y mediante fuerza, violencia e
intimidacion, voluntaria, ilegal y criminalmente yacio y tuvo
acceso carnal con una nia llamada Celestina Adapon,
contra la voluntad de esta. El acusado Pedro Manaba ya ha
sido convicto por Juzgado competente y en sentencia firme
por este mismo delito de
violacion.chanroblesvirtualawlibrary chanrobles virtual law
library
Hecho cometido con infraccion de la ley.
The defendant renewed his motion for dismissal in the case
on the ground of double jeopardy, but his motion was
denied; and upon the termination of the trial the defendant
was found guilty and sentenced as hereinabove
stated.chanroblesvirtualawlibrary chanrobles virtual law
library
Whether the defendant was placed in jeopardy for the
second time or not when he was tried in the present case
depends on whether or not he was tried on a valid
complaint in the first case. The offense in question was
committed on May 9, 1932, or subsequent to the date when
the Revised Penal Code became
effective.chanroblesvirtualawlibrary chanrobles virtual law
library
The third paragraph of the article 344 of the Revised Penal
Code, which relates to the prosecution of the crimes of
adultery, concubinage, seduction, rape and acts of
lasciviousness reads as follows:
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
has been expressly pardoned by the above-named persons,
as the case may be.
The Spanish text of this paragraph is as follows:
Tampoco puede procederse por causa de estupro, rapto,
violacion o abusos deshonestos, sino en virtud de denuncia
de la parte agraviada, o de sus padres, o abuelos o tutor, ni
despues de haberse otorgado al ofensor, perdon expreso
por dicha partes, segun los casos.
It will be observed that the Spanish equivalent of the word
"filed" is not found in the Spanish text, which is controlling,
as it was the Spanish text of the Revised Penal Code that
was approved by the
Legislature.chanroblesvirtualawlibrary chanrobles virtual law
library
The first complaint filed against the defendant was signed
and sworn to by the chief of police of Dumaguete. As it was
not the complaint of the offended party, it was not a valid
complaint in accordance with the law. The judgment of the
court was therefore void for lack of jurisdiction over the
subject matter, and the defendant was never in
jeopardy.chanroblesvirtualawlibrary chanrobles virtual law
library
It might be observed in this connection that the judgment
was set aside and the case dismissed on the motion of
defendant's attorney, who subsequently set up the plea of
double jeopardy in the present
case.chanroblesvirtualawlibrary chanrobles virtual law
library
The other assignments of error relate to the sufficiency of
the evidence, which in our opinion fully sustains the findings
of the trial judge.chanroblesvirtualawlibrary chanrobles
virtual law library
The recommendation of the Solicitor-General is erroneous in
several respects, chiefly due to the fact that it is based on
the decision of July 30, 1932 that was set aside, and not on
the decision now under consideration. The accused should
not be ordered to acknowledge the offspring, if should there
be any, because the record shows that the accused is a
married man.chanroblesvirtualawlibrary chanrobles virtual
law library
It appears that the lower court should have taken into
consideration the aggravating circumstances of nocturnity.
The defendant is therefore sentenced to suffer seventeen
years, four months, and one day ofreclusion temporal, to
indemnify the offended party, Celestina Adapon, in the sum
of P500, and to support the offspring, if any. As thus
modified, the decision appealed from is affirmed, with the
costs of both instances against the
appellant.chanroblesvirtualawlibrary chanrobles virtual law
library
Street, Abad Santos, Imperial, and Butte, JJ., concur.
EN BANC
[G.R. No. L-8936. October 23, 1956.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FEDERICO
GERONIMO alias Cmdr. OSCAR, ET AL., Defendants, FEDERICO
GERONIMO alias Cmdr. OSCAR, Defendant-Appellant.
DECISION
REYES, J. B. L., J.:
In an information filed on June 24, 1954 by the provincial Fiscal in the Court
of First Instance of Camarines Sur, Appellant Federico Geronimo, together
with Mariano P. Balgos alias Bakal alias Tony, alias Tony Collante alias Taoic,
alias Mang Pacio, alias Bonny Abundio Romagosa alias David, Jesus Polita
alias Rex, Jesus Lava alias Jessie alias NMT, alias Balbas, alias Noli, alias Noli
Metangere, alias NKVD, Juan Ocompo alias Cmdr. Bundalian, alias Tagle,
Rosendo Manuel alias Cmdr. Sendong, alias Ruiz, Ernesto Herrero alias
Cmdr. Ed, alias Rene, alias Eddy, Santiago Rotas alias Cmdr. Jessie, Fernando
Principe alias Cmdr. Manding, Alfredo Saguni alias Godo, alias Terry, alias
Terpy, Andres Diapera alias Maclang, alias Berto, alias Teny, Lorenzo Saniel
alias Wenny, Silvestre Sisno alias Tomo, alias Albert, Teodoro Primavera alias
Nestor, Lorenzo Roxas alias Argos, Vivencio Pineda alias Marquez, Pedro
Anino alias Fernandez, Mauro Llorera alias Justo, Richard Doe alias Cmdr.
Danny and John Doe alias Cmdr. Berion, alias Mayo, alias Cmdr. Paulito and
many others, were charged with the complex crime of rebellion with
murders, robberies, and kidnapping committed as
follows:chanroblesvirtuallawlibrary
xxx xxx xxx
That on or about May 28, 1946 and for sometime prior and subsequent
thereto continuously up to the present time in the province of Camarines
Sur, Philippines and within the jurisdiction of this Honorable Court and in
other municipalities, cities and provinces and other parts of the country
where they have chosen to carry out their rebellious activities, the above-
named accused being then ranking officers and/or members of, or
otherwise affiliated with the Communist Party of the Philippines (CPP) and
the Hukbong Mapagpalaya Ng Bayan (HMB) or otherwise known as the
Hukbalahaps (HUKS) the latter being the armed force of said Communist
Party of the Philippines (CCP) having come to an agreement and decide to
commit the crime of Rebellion, and therefore, conspiring together and
confederating among themselves with all of the thirty-one accused in
criminal case Nos. 14071, 14282, 14315, 14270, 15344 and with all the
accused in criminal case No. 19166 of the Court of First Instance of Manila
with the other members, officers and/or affiliates of the Communist Party
of the Philippines and the Hukbong Mapagpalaya Ng Bayan and with many
others whose identities and whereabouts are still unknown, acting in
accordance with their conspiracy and in furtherance thereof, and mutually
helping one another, did, then and there, wilfully, unlawfully and
feloniously, help, support, promote, maintain, direct and/or command the
Hukbalahaps (HUKS) or the Hukbong Mapagpalaya Ng Bayan (HMB), to rise
publicly and take arms against the government of the Republic of the
Philippines, or otherwise participate in such public armed uprisings for the
purpose of removing the territory of the Philippines from the allegiance to
the government and laws thereof as in fact the said Hukbong Mapagpalaya
Ng Bayan (HMB) or the Hukbalahaps (HUKS) pursuant to such conspiracy,
have risen publicly and taken arms against the Government of the Republic
of the Philippines to attain said purpose, by then and there making armed
raids, sorties, and ambuscades, attacks against the Philippine Constabulary,
the civilian guards, the Police and the Army Patrols and other detachments
as well as upon innocent civilians, and as a necessary means to commit the
crime of Rebellion, in connection therewith and in furtherance thereof, have
then and there committed wanton acts of murder, pillage, looting, plunder,
kidnapping and planned destructions of private and public property and
plotted the liquidation of government officials, to create and spread
disorder, terror, confusion, chaos and fear so as to facilitate the
accomplishment of the aforesaid purpose, among which are as follows, to
wit:chanroblesvirtuallawlibrary
1. That on or about April 28, 1949 at Kilometer 62 at Barrio Salubsob,
municipality of Nueva Ecija, an undetermined number of HUKS led by
Commanders Viernes, Marzan, Lupon and Mulong did, then and there,
willfully, unlawfully and feloniously ambush, assault, attack and fired upon
the party of Mrs. Aurora A. Quezon and her PC escort whom they considered
as their enemies resulting in the killing of Mrs. Aurora A. Quezon, Baby
Quezon, Mayor Bernardo of Quezon City, Major P. San Agustin, Lieutenant
Lasam, Philip Buencamino III, and several soldiers and the wounding of
General Jalandoni and Captain Manalang.
2. That on or about August 26, 1950 in Santa Cruz, Laguna, about one
hundred armed HUKS with intent to gain and for the purpose of securing
supplies and other materials for the support and meintenance of the
Hukbong Mapagpalaya Ng Bayan (HMBS) did, then and there, willfully,
unlawfully and feloniously and forcibly bringing the Cashier of the Provincial
Treasury, Mr. Vicente Reventar from his house to the Provincial Capitol and
at the point of guns forced him to open the Treasury Vault and took
therefrom Eighty Thousand Pesos (P80,000) consisting of various
denominations and including Fifty, One hundred and Five-Hundred Peso
Bills and also took away with them type- writers and other Office supplies
which they found in the Provincial Capitol Building, burning and looting
private buildings in towns.
3. That on or about the years 1951 to 1952 in the municipality of Pasacao,
Camarines Sur, Philippines, a group of Armed Huks under Commander
Rustum raided the house of one Nemesio Palo, a police sergeant of
Libmanan, Camarines Sur and as a result, said HUKS were able to capture
said Nemesio Palo and once captured, with evident premeditation,
treachery and intent to kill, stab, shot and cut the neck of said Nemesio Palo
thereby causing the instantaneous death of Nemesio Palo.
4. That on or about January 31, 1953, at barrio of Santa Rita, Del Gallego,
Camarines Sur a group of HMBS with Federico Geronimo alias Commander
Oscar ambushed and fired upon an Army Patrol headed by Cpl. Bayrante,
resulting in seriously wounding of Pfc. Paneracio Torrado and Eusebio Gruta
a civilian.
5. That on or about February 1954 at barrio Cotmo, San Fernando,
Camarines Sur, a group of four HMBS led by accused Commander Oscar with
evident premeditation, willfully, unlawfully and feloniously killed one
Policarpio Tipay a barrio lieutenant. (Appellees brief, pp. 1-8)
Accused Federico Geronimo first entered a plea of not guilty to the
information. When the case was called for trial on October 12, 1954,
however, he asked the permission of the court to substitute his original plea
with one of guilty, and was allowed to change his plea. On the basis of the
plea of guilty, the fiscal recommended that the penalty of life imprisonment
be imposed upon the accused, his voluntary plea of guilty being considered
as a mitigating circumstance. Geronimos counsel, on the other hand,
argued that the penalty imposable upon the accused was only prision
mayor, for the reason that in his opinion, there is no such complex crime as
rebellion with murders, robberies, and kidnapping, because the crimes of
murders robberies, and kidnapping being the natural consequences of the
crime of rebellion, the crime charged against the accused should be
considered only as simple rebellion. On October 18, 1954, the trial court
rendered judgment finding the accused guilty of the complex crime of
rebellion with murders, robberies, and kidnappings; chan
roblesvirtualawlibraryand giving him the benefit of the mitigating
circumstance of voluntary plea of guilty, sentenced him to suffer the penalty
of reclusion perpetua, to pay a fine of P10,000, to indemnify the heirs of the
various persons killed, as listed in the information, in the sum of P6,000
each, and to pay the proportionate costs of the proceedings. From this
judgment, accused Federico Geronimo appealed, raising the sole question
of whether the crime committed by him is the complex crime of rebellion
with murders, robberies, and kidnappings, or simple rebellion.
After mature consideration, a majority of seven justices 1 of this Court are
of the opinion that the issue posed by Appellant has been already decided
in the recent resolution of this Court in the case of People vs. Hernandez et
al., (99 Phil., 529; chan roblesvirtualawlibrary21 Lawyers Journal, No. 7 [July
31, 1956], p. 316). As in treason, where both intent and overt act are
necessary, the crime of rebellion is integrated by the coexistence of both the
armed uprising for the purposes expressed in article 134 of the Revised
Penal Code, and the overt acts of violence described in the first paragraph
of article 135. That both purpose and overt acts are essential components
of one crime, and that without either of them the crime of rebellion legally
does not exist, is shown by the absence of any penalty attached to article
134. 2 It follows, therefore that any or all of the acts described in article 135,
when committed as a means to or in furtherance of the subversive ends
described in article 134, become absorbed in the crime of rebellion, and
cannot be regarded or penalized as distinct crimes in themselves. In law they
are part and parcel of the rebellion itself, and cannot be considered as giving
rise to a separate crime that, under article 48 of the Code, would constitute
a complex one with that of rebellion.
The terms employed in the first paragraph of article 135 of the Revised Penal
Code to describe the component of violence in the crime of rebellion are
broad and general. The Spanish text (which is the one controlling, People vs.
Manaba, 58 Phil. 665) states that the acts of the rebels may consists of
Sosteniendo combate 3 con la fuerza leal, causando estragos en las
propiedades, ejerciendo violencia grave, exigiendo contribuciones, o
distroyendo caudales publicos de su inversion legitima.
If all the overt acts charged in the information against herein Appellant were
committed for political ends or in furtherance of the rebellion, they come
within the preceding description. Thus, count 4 (ambushing and firing upon
army patrol) constitutes engaging in combat with the loyal troops; chan
roblesvirtualawlibrarycount 2 (taking funds and equipment from the
Provincial Treasury of Laguna) is diverting public funds from their ligitimate
purpose; chan roblesvirtualawlibrarywhile the killings outlined in the other
counts (1, 3 and 5) are instances of committing serious violence.
The majority of the Court found no cogent reason for limiting commission
of serious violence in article 135 to hostilities against the Governments
armed forces exclusively; chan roblesvirtualawlibraryfor in that case, the
former expression would be redundant and mere duplication of engaging
in combat with loyal troops, also described in the same article. If the
infliction of serious violence was separately expressed in the law, it is
because the violence referred to is that inflicted upon civilians. Again, to
restrict serious violence to acts short of homicide, is to unwarrantedly
assume that the broad term violencia grave is used in the limited sense of
lesiones graves, which in our Penal Code has a specialized signification. In
truth, if physical injuries constitute grave violence, so would killing
necessarily be, if not more. Additionally, it may be observed that rebellion
is by nature a crime of masses or multitudes, involving crowd action, that
cannot be confined a priori within predetermined bounds. (People vs.
Hernandez, supra; chan roblesvirtualawlibraryPeople vs. Almazan, C. A., 31
Off. Gaz. 1932). Hence the broad terms employed by the statute.
The prosecution insists that the more serious crime of murder cannot be
justifiably regarded as absorbed by the lesser crime of rebellion. In the first
place, it is not demonstrated that the killing of an individual is intrinsically
less serious or less dangerous to society than the violent subversion of
established government, which emperils the lives of many citizens, at least
during the period of the struggle for superiority between rebels and
loyalists. If, on the other hand, murder is punished by reclusion perpetua to
death, and rebellion only by prision mayor, this leniency is due to the
political purpose that impels every rebellious act. As noted by Groizard
(Codigo Penal de 1870, Vol. 3, p. 239)
El analisis de toda clase de delitos politicos ofrece para el jurisconsulto un
resultado precioso, pues pone de relieve las diferencias cardinales que
existen entre esta clase de hechos y los delitos comunes; chan
roblesvirtualawlibraryentre los reos de aquellos crimenes y los reos de estos
otros. Para los delitos comunes, la sociedad tiene una constante y energica
reprobacion que no atenua ni el trascurso de tiempo ni el cambio de las
ideas. Para los delitos politicos, no. Quien se atrevera si de honrado se
precia, a hacer alarde de la amistad de un hombre condenado por robo o
por asesinato? Y quien no ha tendido la mano cariosa sin perder nada de
respetabilidad, a algun reo de un delito politico en la serie continuada de
revoluciones y contrarevoluciones que constituyen desgraciadamente los
ultimos periodos de nuestra historia? La consumacion del delito y el exito
de la rebelion, ya lo hemos dicho, para el reo politico, es mas que la
impunidad, es el triunfo, es el poder, es el Gobierno, es casi la gloria. Pero
no sucede lo mismo tratandose de delitos
comunes:chanroblesvirtuallawlibrary la consumacion del delito ni apaga el
remordimiento, ni aleja del criminal el peligro de la pena, ni mejora en nada
su condicion respecto de la justicia. Hay, pues, entre el delito comun y el
delito politico, entre las personas responsables de unos y otros diferencias
sustanciales, y el mayor error que en el estado actual de los estudios
juridicos puede cometer el legislador es no apreciar eses diferencias, sobre
todo en la aplicacion de las penas.
And our history of three centuries of uninterrupted rebellions against
sovereign Spain, until she was finally driven from our shores, suffices to
explain why the penalty against rebellion, which stood at reclusion temporal
maximum to death in the Spanish Penal Code of 1870, was reduced only
prision mayor in our revised Penal Code of 1932.
In addition, the government counsels theory that an act punished by more
serious penalty cannot be absorbed by an act for which a lesser penalty is
provided, is not correct. The theory is emphatically refuted by the treatment
accorded by the Penal Code to the crime of forcible abduction, for which
the law imposes only reclusion temporal (article 342), notwithstanding that
such crime necessarily involves illegal detention of the abducted woman for
which article 267 of the same Penal Code fixes the penalty of reclusion
temporal, in its maximum period, to death. The same situation obtains in
the crime of slavery defined in article 272, whereby the kidnapping of a
human being for the purpose of enslaving him is punished with prision
mayor and a fine of not more than P10,000.00, when kidnapping itself is
penalized by article 267 with a much higher penalty.
And we have already pointed out in the Hernandez resolution that to admit
the complexing of the crime of rebellion with the felonies committed in
furtherance thereof, would lead to these undesirable
results:chanroblesvirtuallawlibrary (1) to make the punishment for rebellion
heavier than that of treason, since it has been repeatedly held that the latter
admits no complexing with the overt acts committed in furtherance of the
treasonous intent, and, in addition, requires two witnesses to every overt
act which is not true in the case of rebellion; chan roblesvirtualawlibrary(2)
to nullify the policy expressed in article 135 (R.P.C.) of imposing lesser
penalty upon the rebel followers as compared to their leaders, because
under the complexing theory every rebel, leader or follower, must suffer the
heavier penalty in its maximum degree; chan roblesvirtualawlibraryand (3)
to violate the fundamental rule of criminal law that all doubts should be
resolved in favor of the accused:chanroblesvirtuallawlibrary in dubiis reus
est absolvendus; chan roblesvirtualawlibrarynullum crimen, nulla poena,
sine lege.
Of course, not every act of violence is to be deemed absorbed in the crime
of rebellion solely because it happens to be committed simultaneously with
or in the course of the rebellion. If the killing, robbing, etc. were done for
private purposes or profit, without any political motivation, the crime would
be separately punishable and would not be absorbed by the rebellion. But
ever then, the individual misdeed could not be taken with the rebellion to
constitute a complex crime, for the constitutive acts and intent would be
unrelated to each other; chan roblesvirtualawlibraryand the individual
crime would not be a means necessary for committing the rebellion as it
would not be done in preparation or in furtherance of the latter. This
appears with utmost clarity in the case where an individual rebel should
commit rape; chan roblesvirtualawlibrarycertainly the latter felony could
not be said to have been done in furtherance of the rebellion or facilitated
its commission in any way. The ravisher would then be liable for two
separate crimes, rebellion and rape, and the two could not be merged into
a juridical whole.
It is argued that the suppression in the present Penal Code of article 244 of
the old one (article 259 of the Spanish Penal Code of 1870) indicates the
intention of the Legislature to revive the possibility of the crime of rebellion
being complexed with the individual felonies committed in the course
thereof, because the suppressed article prohibited such complexing. The
text of the suppressed provision is as follows:chanroblesvirtuallawlibrary
ART. 244. Los delitos particulares cometidos en una rebelion o sedicion, o
con motivo de ellas, seran castigados respectivamente segun las
disposiciones de este codigo.
Cuando no puedan descubrirse sus autores, seran penados como tales los
jefes principales de la rebelion o sedicion.
The first paragraph is to the effect that the delitos particulares (meaning
felonies committed for private non-political ends, as held by the
commentators Cuello Calon and Viada, since the Penal Code does not
classify crimes into general and particular) are to be dealt with
separately from the rebellion, punishment for each felony to be visited upon
the perpetrators thereof. This paragraph has no bearing on the question of
complex crimes, but is a mere consequence of the fact that the delicts
committed for private ends bear no relation to the political crime of
rebellion (other than a coincidence of time) and therefore must be
separately dealt with. This is so obvious that, as Groizard pointed out (Vol.
3, p. 650), such action (their punishment as a private misdeed) would be
taken by the courts even if this first paragraph of article 244 had not been
written.
Far more significant, in the opinion of the majority, is that our Revised Penal
Code of 1932 did not revive the rule contained in the second paragraph of
article 244 of the old Penal Code (Article 259 of the Spanish), whereby the
rebel leaders were made criminally responsible for the individual felonies
committed during the rebellion or on occasion thereof, in case the real
perpetrators could not be found. In effect that paragraph established a
command responsibility; chan roblesvirtualawlibraryand in suppressing it,
the Legislature plainly revealed a policy of rejecting any such command
responsibility. It was the legislative intent, therefore, that the rebel leaders
(and with greater reason, the mere followers) should be held accountable
solely for the rebellion, and not for the individual crimes (delitos
particulares) committed during the same for private ends, unless their
actual participation therein was duly established. In other words, the
suppression of article 244 of the old Penal Code virtually negates the
contention that the rebellion and the individual misdeeds committed during
the same should legally constitute one complex whole. Whether or not such
policy should be maintained is not for the courts, but for the Legislature, to
say.
But while a majority of seven justices 4 are agreed that if the overt acts
detailed in the information against the Appellant had been duly proved to
have been committed as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, then the
accused could only be convicted of simple rebellion, the opinions differ as
to whether his plea of guilty renders the accused amenable to punishment
not only for rebellion but also for murder or other crimes.
Six justices 5 believe that conceding the absence of a complex crime, still, by
his plea of guilty the accused-Appellant has admitted all the acts described
in the five separate counts of the information; chan
roblesvirtualawlibraryand that if any of such counts constituted an
independent crime committed within the jurisdiction of the lower court as
seems to be the case under the facts alleged in Count No. 5 (the killing of
Policarpio Tibay), then the avertment in the information that it was
perpetrated in furtherance of the rebellion, being a mere conclusion, cannot
be a bar to Appellants conviction and punishment for said offense, he
having failed, at the arraignment, to object to the information on the ground
of multiplicity of crimes charged. Hence, the acts charged in Counts 1 to 4
cannot be taken into consideration in this case, either because they were
committed outside the territorial jurisdiction of the court below (Count 1),
or because the allegations do not charge the Appellants participation
(Count 3), or else the acts charged are essentially acts of rebellion, with out
private motives (Counts 2 and 4).
Five justices, 6 on the other hand, hold that by his plea of guilty, the accused
avowed having committed the overt acts charged in all five counts; chan
roblesvirtualawlibrarybut that he only admitted committing them in fact as
a necessary means, in connection and in furtherance of the rebellion, as
expressly alleged by the prosecution. This is not only because the
information expressly alleged the necessary connection between the overt
acts and the political ends pursued by the accused, but in addition, it failed
to charge that the Appellant was impelled by private motives. Wherefore,
such overt acts must be taken as essential ingredients of the single crime of
rebellion, and the accused pleaded guilty to this crime alone. Hence, there
being no complex crime, the Appellant can only be sentenced for the lone
crime of rebellion. Even more, the minority contends that under the very
theory of the majority, the circumstances surrounding the plea are such as
to at least cast doubt on whether the accused clearly understood that he
was pleading guilty to two different crimes or to only one; chan
roblesvirtualawlibraryso that in fairness and justice, the case should be sent
back for a rehearing by the Court of origin, to ascertain whether or not the
accused fully realized the import of his plea (U.S. vs. Patala, 2 Phil., 752; chan
roblesvirtualawlibraryU.S. vs. Agcaoili, 31 Phil., 91; chan
roblesvirtualawlibraryU.S. vs. Jamad, 37 Phil., 305).
In view of the foregoing, the decision appealed from is modified and the
accused convicted for the simple (non-complex) crime of rebellion under
article 135 of the Revised Penal Code, and also for the crime of murder; chan
roblesvirtualawlibraryand considering the mitigating effect of his plea of
guilty, the accused-Appellant Federico Geronimo is hereby sentenced to
suffer 8 years of prision mayor and to pay a fine of P10,000, (without
subsidiary imprisonment pursuant to article 38 of the Penal Code) for the
rebellion; chan roblesvirtualawlibraryand, as above explained, for the
murder, applying the Indeterminate Sentence Law, to not less than 10 years
and 1 day of prision mayor and not more than 18 years of reclusion
temporal; chan roblesvirtualawlibraryto indemnify the heirs of Policarpio
Tibay in the sum of P6,000; chan roblesvirtualawlibraryand to pay the
costs. SO ORDERED.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Labrador, Concepcion and
Felix, JJ., concur.
Separate Opinions
MONTEMAYOR, J., concurring and dissenting:chanroblesvirtuallawlibrary
After stating the facts and the issues in this case, the learned majority
opinion declares that the majority of seven Justices of the Court are of the
opinion that the issue posed by the Appellants has been already decided in
the recent resolution of this Court in the case of People vs. Hernandez, et
al., (99 Phil., 529). Had the considerations ended there and the case was
decided of the basis of said Hernandez resolution, which the majority of
Justices apparently ratified, I would have contended myself with merely
citing and making as part of my concurrence and dissent, my dissenting
opinion in that same case of Hernandez, supra. However, the majority not
only ratifies and emphasizes the considerations and doctrine laid down in
the Hernandez case, but makes further considerations, additional and new,
and even quote authorities, for which reason, I again find myself in a
position where I am constrained not only to cite my dissenting opinion in
the Hernandez case, but also make further observations not only to discuss
the new point raised, but also in an endeavor to clarify and present a clear
picture of our present law on rebellion and its origin.
For purposes of ready reference, I deem it convenient to reproduce articles
134 and 135 of the Revised Penal Code, reading as
follows:chanroblesvirtuallawlibrary
ART. 134. Rebellion or insurrection. How committed. The crime of
rebellion or insurrection is committed by being publicly and taking arms
against the Government for the purpose of removing from the allegiance to
said Government or its laws, the territory of the Philippine Islands or any
part thereof of any body of land, naval or other armed forces, or of depriving
the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.
ART. 135. Penalty for rebellion or insurrection. Any person who
promotes, maintains, or heads a rebellion or insurrection, or who, while
holding any public office or employment takes part therein, engaging in war
against the forces of the Government, destroying property or committing
serious violence, exacting contributions or diverting public funds from the
lawful purpose for which they have been appropriated, shall suffer the
penalty of prision mayor and a fine not to exceed 20,000 pesos.
Any person merely participating or executing the commands of others in a
rebellion shall suffer the penalty of prision mayor in its minimum period.
When the rebellion or insurrection shall be under the command of
unknown leaders, any person who in fact directed the others, spoke for
them, signed receipts and other documents issued in their name, or
performed similar acts, on behalf of the rebels shall be deemed the leader
of such rebellion.
I am also reproducing the Spanish text of the above Article 135 because as
well stated in the majority opinion on the strength of the case People vs.
Manaba, 58 Phil., 665, the Spanish text of the Rev. P. Code was the one
approved by the Legislature and so is controlling.
ART. 135. Pena para la rebelion o insurreccion. Sera castigado con
prision mayor y multa que no exceda de 20,000 pesos el promovedor,
sostenedor o jefe de la rebelion o insurreccion o el que hubiere tomado
parte en ella siendo funcionario o empleado publico, sosteniendo combate
contra la fuerza leal, causando estragos en las propiedades, ejerciendo
violencia grave, exigiendo contribuciones, o distrayendo caudales publicos
de su inversion legitima.
Los meros afiliados o ejecutores de la rebelion seran castigados con prision
mayor en su grado minimo.
Cuando los jefes de una rebelion o insurreccion fueran desconocidos, se
reputaran por tales los que de hecho hubieren dirigido a los demas, llevado
la voz por ellos, firmado recibos y otros escritos expedidos a su nombre o
ejercitado otros actos semejantes en representacion de los rebeldes.
The majority says, and I quote:chanroblesvirtuallawlibrary
As in treason, where both intent and overt acts are necessary, the crime of
rebellion is integrated by the coexistence of both the armed uprising for the
purposes expressed in article 134 of the Revised Penal Code, and the overt
acts of violence described in the first paragraph of article 135. That both
purpose and overt acts are essential components of one crime, and that
without either of them the crime of rebellion legally does not exist, is shown
by the absence of any penalty attached to article 134.
I cannot agree wholly to the correctness of the above proposition. It is true
that in treason as well as in rebellion both intent and overt acts are
necessary, excluding of course conspiracy and proposal to commit rebellion
where overt acts are not necessary (article 136), but what I consider the flaw
in the thesis is the claim that in rebellion, the armed uprising is the intent
and the overt acts are those act of violence described in the first paragraph
of article 135, namely, engaging the Government forces in combat, causing
damage to property, committing serious violence, etc. To me, the intent in
rebellion is the purpose, the intention and the objective of the rebels to
remove from the allegiance of the government or its laws the territory of
the Philippines or any part thereof, of any body of land, naval or any armed
forces, etc., and the overt act or acts are the rising publicly and taking arms
against said Government. Article 134 contains and includes both elements,
intent and overt acts to constitute a complete crime. Said article 134,
without making any reference to any other article, described the manner
rebellion is committed, not partially but fully and completely, without any
qualification whatsoever, and said description is complete in order to render
persons included therein as having consummated the crime of rebellion.
Article 134 in part reads.
ART. 134. Rebellion or insurrection. How committed. The crime of
rebellion or insurrection is committed by rising publicly and taking arms
against the Government etc.
It is necessary to consider the origin and history of the provisions of articles
134 and 135 of the Revised Penal Code as I have previously reproduced. This,
in order to have a clearer understanding of the meaning of both articles and
the spirit and intention behind them. Our present Revised Penal Code is a
revision of our Penal Code promulgated in the Philippines on July 14, 1887
(later referred to as the Penal Code of 1887), based upon and taken almost
bodily from the Spanish Penal Code of 1870 (later referred to as the Penal
Code of 1870). Our Penal Code of 1887 adopted in great measure the
provisions of the Penal Code of 1870. However, the provisions of our Penal
Code of 1887 on rebellion, were superseded and replaced by the provisions
of Act No. 292 of the Philippine Commission, which governed rebellion up
to 1932 when the Revised Penal Code went into effect. In dealing with the
crime of rebellion, the Committee on Revision abandoned the provisions of
Act No. 292 and went back to and adopted those of the Penal Code of 1870,
although it included the more benign and lighter penalties imposed in Act
No. 292. The provisions of the Penal Code of 1870 on rebellion are rather
complicated for the reason that in defining and penalizing acts of rebellion,
they make reference to the provisions regarding crimes against the form of
government. For this reason, to have an over all picture of the law on
rebellion, we have to make reference to and cite, even reproduce, portions
of the codal provision on crimes against the form of government. For the
sake of brevity and so as not to unduly lengthen this opinion, I shall confine
myself to the reproduction of the pertinent provisions of the Spanish Penal
Code of 1870, for being the source of our Penal Code of 1887, besides the
likelihood if not a fact that since as already stated, the provisions of our
Penal Code of 1887 on rebellion were not in force at the time of the revision,
the Committee revising said Penal Code of 1887, must have considered
mainly the provisions of the Penal Code of 1870.
Art. 184 of the Sp. P. Code of 1870 reads, thus:chanroblesvirtuallawlibrary
Delitos contra la forma de Gobierno
ART. 184. Los que se alzaren publicamente en armas y en abierta hostilidad
para perperar cualquiera de los delitos previstos en el articulo 181, seran
castigados con las penas siguientes:chanroblesvirtuallawlibrary
1. Los que hubieren promovido el alzamiento o lo sostuvieren o lo
dirigieren o aparecieren como sus principales autores, con la pena de
reclusion temporal en su grado maximo a muerte.
2. Los que ejercieren un mando subalterno, con la de reclusion temporal
a muerte, si fueren personas constituidas en Autoridad civil o eclesiastica, o
si hubiere habido combate entre la fuerza de su mando y la fuerza publica
fiel al Gobierno, o aqu;lla hubiere causado estragos en las propiedades de
los particulares, de los pueblos o del Estado, cortado las lineas telegraficas
o las ferreas, ejercido violencias graves contra las personas, exigido
contribuciones o distraido los candales publicos de su legitima inversion.
Fuera de estos casos, se impondra al culpable la pena de reclusion
temporal.
3. Los meros ejecutores del alzamiento con la pena de prision mayor en
su grado medio a reclusion temporal en su grado medio a reclusion temporal
en su grado minimo, en los casos previstos en el parrafo primero del numero
anterior, y con la de prision mayor en toda su extension, en los
comprendidos en el parrafo segundo del propio numero.
Art. 243 of the same code reads as follows:chanroblesvirtuallawlibrary
Delitos contra el Orden Publico
ART. 243. Son resos de rebelion los que se alzaren publicamente y en
abierta hostilidad contra el Gobierno para cualquiera de los objetos
siguientes:chanroblesvirtuallawlibrary
1. Destronar al Rey, deponer el Regente o Regencia del Reino, o privarles
de su libertad personal u, obligarles a ejecutar un acto contrario a su
voluntad.
2. Impedir la celebracion de las elecciones para Diputados a Cortes o
Senadores en todo el Reino, o la reunion legitima de las mismas.
3. Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos
Colegisladores o arrancarles alguna resolucion.
4. Ejecutar cualquiera delos delitos previstos en el art. 165.
5. Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de
mar, o cualquiera otra clase de fuersa armada, de la obediencia al supremo
Gobierno.
6. Usar y ejercer por si o despojar a los Ministros de la Corona de sus
facultades constitucionales, o impedirles o coartarles su libre ejercicio.
ARTS. 244, 245 and 246 of the same code read as
follows:chanroblesvirtuallawlibrary
ART. 244. Los que induciendo y determinando a los rebeldes, hubieron
promovido o sostuvieren la rebellion, y los candillos principales de esta,
seran castigados con la pena de reclusion temporal en su grado maximo a
muerte.
ART. 245. Los ejerciaren un mando subalterno en la rebelion incurriran
en la pena de reclusion temporal a muerte, si se encontraren en alguno de
los casos previstos en el parrafo primero del numero 2. del articulo
184; chan roblesvirtualawlibraryy con la de reclusion temporal si no se
encontraren incluidos en ninguno de ellos.
ART. 246. Los meros ejecutores de la rebelion seran castigados con la
pena de prision mayor en su grado medio a reclusion temporal en su grado
minimo, en los casos previstos en el parrafo primero del numero 2. del
articulo 184; chan roblesvirtualawlibraryy con la de prision mayor en toda
su extension no estando en el mismo comprendidos.
It will be observed that in drafting Art. 134 of our Revised Penal Code, the
Committee on Revision (later referred to as Code Committee) adopted, with
the exclusion of numbers 1, 2, 3, 4 and 6 of Art. 243 which refer to the King
and the legislative bodies of the Kingdom of Spain, the provisions of said art.
243 of the Penal Code of 1870, particularly, the first part thereof and also
No. 5, even their phraseology
son reos de rebelion los que se alzaren publicamente y en abierta hostilidad
contra el Gobierno cralaw and sustraer el Reino o parte de el o algun
cuerpo de tropa de tierra o de mar, o cualquiera otra clase de fuerza armada,
de la obediencia al supremo Gobierno, (the crime of rebellion or
insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippine Islands or any part
thereof of any body of land, naval or other armed forces), (our article 134).
Now, as regards the penalty for rebellion, it will be seen that under article
244 (Penal Code of 1870), persons who by inciting and encouraging the
rebels shall have brought about or shall sustain a rebellion as well as the
principal leaders of such rebellion as are penalized with reclusion temporal
in its maximum degree of death. Under article 245, same code, those
holding a subordinate command in the rebellion are penalized with
reclusion temporal to death, if they are included in any of the cases provided
for in paragraph 1 of No. 2 of article 184, which for purposes of ready
reference we again reproduce, thus:chanroblesvirtuallawlibrary
cralaw si fueren personas constituidas en Autoridad civil o eclesiastica, o
si hubiere habido combate entre la fuerza de su mando y la fuerza publica
fiel al Gobierno, o aguella hubiere causado estragos en las propiedades de
los particulares, de los pueblos o del Estado, cortado las lineas telegraficas
o las vias ferreas, ejercido violencias graves contra las personas, exigido
contribuciones o distraidos los caudales publicos de su legitima inversion.;
or if not so included, the penalty is reclusion temporal.
Under article 246, those persons merely participating in the rebellion are
penalized with prision mayor in its medium degree to reclusion temporal in
its minimum degree, in the cases provided for in paragraph 1 of No. 2 of
article 184 as above reproduced, but those not so included, will suffer the
penalty only of prision mayor.
As I have stated in my dissenting opinion in the Hernandez case, supra, one
of the purposes of the revision of our old Penal Code of 1887 was
simplification and elimination of provisions considered unnecessary, in
proof of which, while the old Penal Code contained 611 articles, the Revised
Penal Code has but 367 articles. There is every reason to believe that the
code Committee in its endeavor at simplification did not deem it necessary
to provide a special penalty for those who promote, maintain, or head a
rebellion as does article 244, and it made a merger or combination of articles
244 and 245, so as to impose the same penalty on (1) the promoters and
leaders of the rebellion and (2) on those who are either holding any public
office or employment (instituida en autoridad civil o eclesiastica) or if not so
holding any public office, that their forces have engaged the forces of the
Government in combat, or have caused damage to Government or private
property, or committed serious violence, etc. (sosteniendo combate contra
la fuerza leal, causendo estragos en las propeidades, ejerciendo violencia
grave, exigiendo, contribuciones, o distrayendo caudales publicos de su
enversion legitima). (Spanish text of article 135 of our revised Penal Code).
I cannot believe that the Code Committee in making the merger abandoned
the idea of punishing the promotion, maintenance, and leadership of a
rebellion in itself, and that to penalize the same, it must be connected and
coupled with the commission of any or all of the acts above mentioned,
which under the Penal Code of 1870, refers only to those holding a
subordinate command in the rebellion. I am convinced that the whole aim
and intention of the Code Committee was merely to equalize the penalty for
both sets of rebels those leaders, promoters, and maintainers of the
rebellion on the one hand, and those holding a subordinate command under
the qualification stated in paragraph 1 of article 135, but that the former,
because of their more serious and heavier criminal responsibility their
promotions, maintenance, and leadership of the rebellion were sufficiently
deserving of the penalty of prision mayor and a fine not, to exceed
P20,000; chan roblesvirtualawlibrarybut for those rebels with lesser
responsibility, to deserve the same penalty, they must either be holding any
public office or employment, or if not, that their forces have engaged
Government troops in combat, or have caused damage to property, etc.
Stated differently, the clause sosteniendo combate contra la fuerza leal,
causando estragos en las propeidades, ejerciendo violencia grave, etc.,
refers to and qualifies not the leaders, promoters, and maintainers of the
rebellion, but only those rebels of lesser responsibility. In other words for
the leaders, promoters and maintainers of the rebellion, the rebellion is
consummated and subject to punishment under article 134. It may be that
the Code Committee that drafted article 135 in its endeavors to achieve a
phraseology as simple and concise as possible, did not convey its purpose
and intent any too plainly and clearly, but I venture to assert that that was
what it meant. In case of doubt as to the real meaning of article 135,
recourse should be had to its source, namely, articles 244 and 245 in relation
with No. 2 paragraph 1 of article 184 of the Spanish Penal Code of 1870, for
which reason I deemed it necessary to reproduce as I did said articles.
For the foregoing reasons, I cannot agree with the majority that the
commission of the acts mentioned in Article 134 alone, even by the leaders
and promoters of the rebellion, carry no penal sanction. Besides the
considerations or conclusions already adduced against said holding and
theory of the majority, there are other reasons. For instance, the second
paragraph of article 135 provides that:chanroblesvirtuallawlibrary
Any person merely participating or executing the commands of others in a
rebellion shall suffer the penalty of prision mayor in its minimum period.
Under this provision, one merely participating in a rebellion, that is rising
publicly and taking arms against the government under article 134, is
penalized with prision mayor in its minimum period. But under the theory
of the majority, the leaders of the rebellion who perform the same acts
defined in the same article 134 may not be punished, unless they or their
forces engage Government troops or cause damage to property, commit
serious violence, etc. That would seem to be unjust and illogical.
Again, articles 136 and 138 of the Revised Penal Code penalize conspiracy
and proposal to commit rebellion and inciting to rebellion. I reproduce said
two articles:chanroblesvirtuallawlibrary
ART. 136. Conspiracy and proposal to commit rebellion or insurrection.
The conspiracy and proposal to commit rebellion or insurrection shall be
punished, respectively, by prision correccional in its maximum period and a
fine which shall not exceed P5,000, and by prision correccional in its medium
period and a fine not exceeding P2,000.
ART. 138. Inciting to rebellion or insurrection. The penalty of prision
mayor in its minimum period shall be imposed upon any person who,
without taking arms or being in open hostility against the Government, shall
incite others to the execution of any of the acts specified in article 134 of
this Code, by means of speeches, proclamations, writings, emblems,
banners or other representations tending to the same end.
Under article 136, if two or more persons merely conspire and come to an
agreement to commit rebellion or insurrection, which is defined in article
134, without actually committing it or performing the acts mentioned in said
article 134, they are already guilty and are punished with prision correcional
in its maximum period and a fine not exceeding P5,000; chan
roblesvirtualawlibraryand if the same two or more persons just propose to
some other person or persons the commission of rebellion under article 134, meaningless and useless. The penalty for rebellion is found in the following
they are punished with prision correccional in its medium period and a fine article of 135, just as it is found in articles 244, 245 and 246 of the Penal
of not exceeding P2,000. In fine, persons merely agreeing and deciding Code of 1870.
among themselves to rise publicly and take arms against the Government
I believe that when a group of dissidents or Hukbalahaps armed and
for the purpose mentioned in article 134, without actually rising publicly and
determined to overthrow the Government raid, say, an isolated town, scare
taking arms against the Government, or if they merely propose the
away the two or three policemen on guard at the presidencia, take
commission of said acts to other persons without actually performing those
possession of the building even for a few hours, raise the rebel flag, call and
overt acts under article 134, they are already subject to punishment. But
herd the residents before the presidencia, and make speeches proclaiming
under the theory of the majority, if those same persons, not content with
the regime of the dessidents and advising the gathering to transfer their
merely conspiring and agreeing to commit the acts of rebellion or proposing
allegiance and loyalty from the constituted Government to the rebels and
its commission to others, actually go out and actually carry out their
stop paying taxes to said government and instead contribute the funds to
conspiracy and agreement, and rise publicly and take arms against the
the Huks, without firing a single shot or committing any of the acts
Government, under article 134 there is no penalty. That seems to me rather
enumerated in article 135, the crime of rebellion is complete and
unreasonable and hard to understand.
consummated and is subject to penalty. In my modest research for
Then, under article 138 of the Revised Penal Code, persons who, without authorities on the subject of rebellion, I came across the case of People of
taking arms or being in open hostility against the Government under article the Philippines vs. Benito Cube of the Court of Appeals, G. R. No. 1069-R,
134, merely incite others to the execution of any of the acts specified in said decided by that court on November 24, 1948. There it was held
article, by means of speeches, proclamations, writings, etc., they are that:chanroblesvirtuallawlibrary
punished with prision mayor in its minimum period. But according to the
cralaw The mere fact that Appellant knowingly identified himself with an
interpretation by the majority of articles 134 and 135, if those same persons,
organization that was openly fighting to overthrow the Government was
not content with merely making speeches, issuing proclamations, etc.,
enough to make him guilty of the crime of rebellion. Under our laws it is not
intended to incite others to commit the acts specified in article 134, actually
necessary that one has engaged the Government in a clash of arms to
commit those acts themselves, they incur no penalty. I confess I fail to follow
commit the crime of rebellion. It is not even necessary that there be a clash
the reasoning of the majority on the point.
of arms between the rebels and the Government. (U. S. vs. Sadian, 3 Phil.,
Rebellion or insurrection. How committed. The crime of rebellion or 323.)
insurrection is committed by rising publicly and taking arms against the
Incidentally, it may be stated that said decision penned by Mr. Justice
Government. (Article 134)
Gutierrez David was concurred in and signed by Mr. Justice J. B. L. Reyes, the
It is true that article 134 of our Revised Penal Code itself does not impose writer of the present majority decision.
any penal sanction; chan roblesvirtualawlibrarythe reason is that it is a mere
The same Court of Appeals, in the case of People vs. Geronimo Perez, G. R.
definition, just as article 243 of the Spanish Penal Code of 1870 from which
No. 9196-R, involving rebellion cited with favor its previous decision in the
it was taken, merely defines and does not penalize the acts therein
case of People vs. Cube, supra, and apparently affirmed and ratified the
enumerated. The fact that the article defining a crime or describing how it
doctrine laid therein.
is committed does not itself impose the penalty does not necessarily mean
that the act or acts so defined do not constitute a crime; chan Now, as to the nature and application of penalty of rebellion under our
roblesvirtualawlibraryotherwise, all the definition and all the detailed Revised Penal Code, I have already endeavored to show that our Art. 135 is
description of the commission of said crime would become empty, based upon and taken from articles 244, 245 and 246 of this Penal Code of
1870, though drastically reducing and mitigating the severity of the
penalties found in the Spanish Penal Code, and that the Code Committee in
its effort at simplification, made a merger of Arts. 244, 245 and 246. The
Code Committee, I feel certain, adopted in principle the scientific and
equitable classification of the different persons taking part in the rebellion,
scaling punishments according to their position in the rebellion and extent
and seriousness of their responsibility. The Code Committee may not have
made itself entirely clear, and in case of doubt we should interpret Art. 135
in relation to and considering the philosophy of the Spanish Penal Code
provisions on the subject of penalties on rebellion in order to avoid the
unreasonable, unequitable, even absurd results I have already pointed out.
To achieve this, we may have recourse to the rules of statutory construction.
If a literal interpretation of any part of a statute would operate unjustly or
lead to absorb results, or be contrary to the evident meaning of the Act
taken as a whole, it should be rejected (In
Re:chanroblesvirtuallawlibraryAllen, 2 Phil. 630, 643); chan
roblesvirtualawlibrarycourts permit the elimination of a word and its
substitution for others when it is necessary to carry out the legislative intent,
where the word is found in the statute due to the inadvertence of the
legislature or reviser, or where it is necessary to give the act meaning, effect,
or intelligibility, or where it is apparent from the context of the act that the
word is surplusage, or where the maintenance of the word, would lead to
an absurdity or irrationality, or where the use of the word was a mere
inaccuracy, or clearly apparent mishap, or where it is necessary to avoid
inconsistencies and to make the provisions of the act harmonize
(Sutherland, Statutory Construction, Third Edition, Vol. II, pp. 458 464); chan
roblesvirtualawlibraryin the construction of laws, whether constitutional or
statutory, the court is not bound to a literal interpretation, where it would
lead to an absurdity or a plain violation of the spirit and purpose of the
enactment (McCarty v. Goodsman, 167 N. W. 503 cited in L. R. A. Digest, Vol.
7, p. 8892)
I agree with the majority that any or all the acts described in article 135
when committed as a means to or in furtherance of the rebellion become
absorbed in said rebellion. The question now is to determine the meaning
and scope of said acts. The first act is sosteniendo combate contra la fuerza
leal, which was erroneously translated into English in article 135 to
engaging in war against the forces of the Government. In the case of
Hernandez, supra, we all accepted and followed that English translation, but
later found that it was the Spanish text of the Revised Penal Code that was
approved by the Legislature. Naturally, we are bound by the Spanish text.
Incidentally, if I be permitted a little digression, the majority resolution in
that case of Hernandez laid much emphasis on the phrase engaging in war,
and would have included and absorbed in the rebellion the killings of and
other outrages to civilians. I quote:chanroblesvirtuallawlibrary
One of the means by which rebellion may be committed, in the words of
said article 135, is by engaging in war against the forces of the government
and committing serious violence in the prosecution of said war. These
expressions imply everything that war connotes,
namely:chanroblesvirtuallawlibraryresort to arms, requisition of property
and services, collection of taxes and contributions, restraint of liberty,
damage to property, physical injuries and loss of life, and the hunger, illness
and unhappiness that war carries in its wake except that, very often, it is
worse than war in the international sense, for it involves internal struggle, a
fight between brothers, with a bitterness and passion or ruthlessness
seldom found in a contest between strangers. Being within the purview of
engaging in war and committing serious violence, said resort to arms,
with the resulting impairment or destruction of life and property,
constitutes not two or more offenses, but only one crime that of rebellion
plain and simple.
Now that we find that what article 135 provides is not engaging in war, but
merely engaging in combat, and knowing the vast difference between war
and mere combat, there is the possibility that some of the considerations
and conclusions made in that majority resolution in the Hernandez case may
be affected or enervated. In other words, our law in rebellion contemplates
on only armed clashes, skirmishes, ambuscade, and raids, not the whole
scale conflict of civil war like that between the Union and Confederate forces
in the American Civil War, where the rebels were given the status of
belligerency under the laws of war, and consequently, were accorded much
leeway and exemption in the destruction of life and property and the
violation of personal liberty and security committed during the war.
I agree with the majority opinion in the present case that if the dissidents
attack or are attacked by the Government forces, and deaths are caused by
the rebels, said combat, provided that the killings are of Government troops
or of civilians attached to said troops, like informers, guides, etc. But when
innocent civilians far from the scene of combat are murdered either because
they failed or refuse to sympathize or cooperate with dissidents, or because
they are wealthy landowners, or because they failed to pay the amount of
the ransom for those kidnapped by the dissidents, said killings cannot and
may not be included and absorbed in the rebellion.
The majority says that the term violencia grave (grave violence)
enumerated in article 135 is broad and may include the killing of civilians.
Again, I disagree. There is a vast difference between violence, even serious
violence, and murder or killing. In committing the crime of robbery, the
robber may use violence, even serious violence, on his victim; chan
roblesvirtualawlibrarybut if the violence results in death, the robber is held
guilty not only of robbery but also homicide, or even murder, unless the two
crimes can be considered as a complex crime of robbery with homicide. In
other words, the violence, even serious violence, supposed to be included
in robbery does not extend to, and include killing. The same thing may be
said of the crime of coercion where force and violence is contemplated. If
the violence used does not result in death, the offender answers only for the
crime of coercion, but if the victim dies as a result of the violence to which
he was subjected, then said violence contemplated by the law does not
extend to or cover the death, and the offender answer for both homicide
and coercion. The idea I wish to convey is that the serious violence
mentioned in article 135 can by no means be interpreted to include killings.
In the revised or consolidated (refundido) Penal Code of Spain of 1944, I
have found the phrase violencia grave used in article 144, in connection
with article 142, both under the title Delitos Contra el Jefe del Estado. I
quote:chanroblesvirtuallawlibrary
ART. 142. Al quematare al Jefe del Estado se impondra la pena de reclusion
mayor a muerte.
Con igual pena se castigara el delito frustrado y la tentativa del mismo
delito.
ART. 144. Se castigara con la pena de reclusion mayor a
muerte:chanroblesvirtuallawlibrary
1. Al que privare al Jefe del Estado de su libertad personal.
2. Al que con violencia o intimidacion graves le obligare a ejecutar un acto
contra su voluntad.
3. Al que le causare lesiones graves no estando comprendidas en el
parrafo segundo del art. 142.
From the above articles we can gather that the Spanish legislators made the
necessary and important distinction between the mere use of serious
violence (violencia grave) on the Chief of State and causing his death, by
treating of the two act separately in articles 142 and 144.
In fine, serious violence is one thing and killing or murder is another, entirely
different from each other, one certainly more serious and a graver offense
than the other. If serious violence results in death, then said violence
changes in aspect and becomes homicide or murder. I therefore conclude
that the serious violence mentioned in article 135, which I agree with the
majority that it refers to civilians and not to members of the armed forces
of the Government, cannot include killings of said civilians. Otherwise,
where we to hold that the serious violence (violencia grave) extends to and
includes killings and murders, then we would be converting, though
unwittingly, every rebellion into an open season for hunting as it were,
innocent civilians who have the misfortune of living within raiding distance
from the dissident hideouts.
The majority explains and gives reasons for the great difference between
murder on the one hand, penalized with reclusion temporal to death, and
rebellion on the other, punished with mere prision mayor, due to the
political purpose that impels every rebellious act and quotes Groizard, Vol.
III, p. 239, who discusses the great difference between the crime of, say,
murder or robbery, and the offense of rebellion; chan
roblesvirtualawlibrarythat no one would care to befriend one convicted as
an assassin or robber, but on the other hand would gladly, even fondly,
shake the hand of one convicted of rebellion, and that when the rebellion
succeeds, the rebel not only secures impunity to his rebellious act, but also
attains power, even the government itself and the glory. I agree. It is no less
true, however, that Groizard must be referring to a rebel with clean hands
and a clean conscience, for it is gravely to be doubted whether one would
shake the hand of a rebel dripping and stained with the blood of innocent
civilians, a hand responsible for the devastation and desolation cause to
those very persons and communities which the rebellion pretended to help
and liberate from oppression. That is why Groizard in his next paragraph, in
advocating for the reduction of the very severe penalty attached to rebellion
under the Spanish Penal Code distinguishes between simple rebellion and
one in which the common crimes like murder, robbery, etc., and committed.
I quote:chanroblesvirtuallawlibrary
Con esto queremos dar a entender que las penas fulminadas en el texto
que comentamos nos parcen ante la razon y la ciencia injustificadas por su
dureza. La pena de muerte, tan combatida hoy en todos terrenos, solo
puede defenderse, como tipo maximo de represion, para aquellos delitos
que revisten en todas sus circumstancias el grado mayor juridico concebible
de criminalidad. Ahora mite maximo de la depravacion humana? (Supplied)
bien; chan roblesvirtualawlibrarypueden ser los meros delitos politicos, aun
los delitos de rebelion por graves que sean, no estando unidos con otros
delitos comunes, como robos, incendios, asesinatos, etc., etc.; chan
roblesvirtualawlibrarypueden ser, decimos, calificados, en abstractos
principios de justicia, como el limite maximo de la depravacion humana?
(Emphasis supplied.)
Then the majority makes a reference to our history of long, uninterrupted
rebellion against Spain. A rebellion whose purpose is to overthrow a corrupt
and tyrannical government, redeem the people from oppression,
exploitation and injustice, and free them from a foreign yoke is a movement
deserving of sympathy and admiration; chan roblesvirtualawlibrarybut a
rebellion aimed at overthrowing not a foreign and monarchical government
but its very own, to substitute it not with a democratic and republic form of
government for it is already a republic, but to institute in its place a new
regime under an entirely new and foreign ideology, godless and absolute, to
be subject to the orders and control of a foreign power, such a rebellion
assumes an entirely different aspect, and I am afraid that for it there cannot
be the sympathy, the admiration and glory that Groizard and we have in
mind.
The majority further says that as pointed out in the Hernandez resolution,
to admit the complexing of the crime of rebellion with other crimes, would
result in making the punishment for rebellion heavier than that of treason.
That claim is not entirely correct. The penalty for simple rebellion is still
prision mayor. Now, if the rebels besides committing the crime of rebellion,
commit other crimes more serious from the standpoint of the penalty, like
murder or kidnapping, the penalty for the complex crime necessarily must
be more serious than that of prision mayor, but it does not mean that the
penalty for rebellion has been raised to say reclusion perpetua to death
because the penalty for the complex crime of rebellion with murder is not
the penalty for rebellion but the penalty for the more serious crime of
murder, in its maximum degree. Let us take the crime of estafa involving an
amount not exceeding P200.00, to which the law attaches the relatively light
penalty of arresto mayor in its medium and maximum periods. If one is
convicted of simple estafa, he can be sentenced to only a few months. But
if in committing said estafa he also commits the crime of falsification of a
public document, then the resulting crime is a complex one and he may be
sentenced to from four to six years imprisonment, a penalty which does not
belong to estafa but to the more serious offense of falsification, and in its
maximum degree. I want to make it clear that we who have dissented in the
Hernandez case have neither the desire nor intention to increase the
penalty of rebellion. It may stand as it is, prision mayor; chan
roblesvirtualawlibrarybut if other crimes like murder, robbery and
kidnapping are committed as a means to commit rebellion, that is entirely a
different matter.
In addition to the considerations I made in my dissenting opinion in the
Hernandez case about the complex crime of rebellion with murder,
kidnapping, etc., I wish to emphasize the fact that according to the several
informations filed in different Courts of First Instance, particularly the
different counts contained therein and the arguments adduced by counsel
for the government, the murders, kidnappings, arsons, etc., committed by
the rebels were so committed not just in outbursts of irresponsibility or for
fun or for private motives but that they had an intimate relation with the
rebellion itself; chan roblesvirtualawlibrarythat kidnappings and robberies
were committed to raise funds to finance the rebellion, not only to secure
food and clothing for the rebels, but also firearms and ammunitions; chan
roblesvirtualawlibrarythat murders were committed in order to institute a
reign of terror and panic so that the residents of the outlying barrios finding
themselves beyond the protection of the army, would have no choice but to
join the rebel movement or cooperate and sympathize with them were it
only for purposes of survival; chan roblesvirtualawlibrarythat houses of
innocent civilians are razed to the ground either as an act of reprisal or
punishment for disobedience to orders of the rebels and to serve as an
example to others; chan roblesvirtualawlibrarythat wealthy landowners and
members of their families were liquidated in line with the idea and doctrine
that the landed properties will eventually be distributed among the rebels
or become public property under the new regime. Under this aspect of the
case, there emerges the picture of the intimate and direct relation between
these acts of atrocity and rebellion. From the standpoint of the rebels these
acts are means necessary in their effort to overthrow the government and
achieve the goal of the rebellion. From this standpoint, I reiterate the
contention that the complex crime of rebellion with murder, kidnapping,
robbery, etc. can and does exist.
I also agree with the majority that the taking of public funds and equipment
from the Provincial Treasury of Laguna under count No. 2 of the information
against Appellant, may be absorbed in the rebellion for the reason that it
comes within the phrase distrayendo caudales publicos de su inversion
legitima (diverting of public funds from the legal purpose for which they
have been appropriated).
For the foregoing reasons and considerations, I hold that Defendant-
Appellant herein should beheld to answer for the killings under count No. 1
of the members of the party of Mrs. Quezon, including herself, a beloved
and revered citizen, who had no connection whatsoever with the
Government, much less of its armed forces; chan roblesvirtualawlibraryfor
the treacherous killing and cutting of the neck of Nemesei Palo under count
No. 3, for the reason that he was not a member of the government forces,
but a mere policeman a local peace officer of the town of Linmanan,
Camarines Sur; chan roblesvirtualawlibraryand for the killing of Policarpio
Tipay, barrio lieutenant, under count No. 5, because he was a mere civilian
official of the lowest category, expected only to help the residents of his
barrio voice their needs and interests before the town officials, and
receiving no compensation for this civic service. The above mentioned killing
under counts 1, 3, and 5 should be complexed with rebellion and the
corresponding penalty imposed. In so far as the majority fails to do this, I am
constrained to dissent as I do. And failing to secure a conviction for rebellion
complexed with the killing of Policarpio Tipay under count 5, I concur with
the majoritY in finding Defendant under said count 5 guilty of murder as a
separate crime.
Endencia, J., concurs.
PADILLA, J., concurring and dissenting:chanroblesvirtuallawlibrary
I concur in the opinion of Mr. Justice Montemayor except as to the inclusion
of count No. 1 of the information over which the trial court (the Court of
First Instance of Camarines Sur) had no jurisdiction because it was
committed in Nueva Ecija, outside the territorial jurisdiction of the trial
court, unless it is intended as an expression of an opinion or a statement of
a postulate that the crime of rebellion may be complexed with murder. I
wish to add the codifiers of the penal laws of Spain, as embodied in the Penal
Codes of 1870 and 1887, could not or did not foresee the development and
progress of the Communist movement, as mapped out in the Communist
Manifesto of December 1847, which aimed at world revolution and
domination and turned more violent since 1917 after the overthrow of the
Kerenski Government in Russia that succeeded the Czarist regime. The first
edition of Das Kapital by Karl Marx was published in 1867. It is the first
volume containing Book 1 which concerns with The Process of Capitalist
Production; chan roblesvirtualawlibraryand although he had the essential
facts or materials of Volume II which was to be Book II aimed at expounding
on the Process of Capitalist Circulation, and Book III intended to analyze The
Process of Capitalist Production as a Whole, and of Volume III to contain
Book IV which was to relate a History of Theories of Surplus Value, his death
on 14 March 1883 prevented him from completing the work. Frederick
Engels, his collaborator, took over and published in May 1885 Volume II, The
Process of Capitalist Circulation, and in October 1894 Volume III, the
Capitalist Process of Production as a Whole. On 6 August 1895 Engels died
and Book IV originally planned as Volume III was not completed. These
volumes and books were published by Engels after 1870, the year when the
Spanish Penal Code was enacted or promulgated. The turn from exposition
of the defects, faults and evils of capitalism and persuasion to forsake it into
violent and ruthless means to achieve its discard were not anticipated. The
provisions of article 90 of the Penal Code of 1870 and of article 89 of the
Penal Code of 1887 were due to the vision and foresight of the Spanish
codifiers of their penal laws. Where an indispensable crime is committed to
perpetrate another the result is one crime. Where a crime is committed as
a means necessary to consummate another the result is a complex one and
the penalty provided for the most serious has to be imposed. Rebellion as
perpetrated and pursued relentlessly by the Communist is a continuing
crime, the ultimate aim of which is to overthrow the existing governments 4. Ante. p. 4. The four dissenting justices in the Hernandez resolution see
and to set up their own. To attain that end it is not enough for them to no reason for altering their stand on the question of complexity as expressed
achieve partial or local success. They always look forward to and avail in that case.
themselves of every means and seize every opportunity to realize the
5. Justices Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, and
ultimate objective. For that reason a crime committed such as murder,
Felix.
robbery, kidnapping, arson and the like, though not indispensable for or to
the commission of that of rebellion is nonetheless a means necessary to the 6. Chief Justice Paras and Justices Bengzon, Alex Reyes, Concepcion, and
attainment of their ultimate finality or end. To create chaos and confusion, Reyes, J. B. L
to weaken the morale of the populace, to sow terror and infuse into the
mind of the people panic and fear so that they would submit meekly to the
Communist importunities, demands, imposition, rule, doctrine, political
philosophy and policy, are but a means to an end. Viewed in that light I fail
to see any juridical objection or obstacle to the application of the provisions
of article 48 of the Revised Penal Code, as amended by Act No. 4000.
As stated in the majority opinion, and without foresaking my view on the
point of complexity of rebellion with murder, I agree to the penalties
imposed upon the Defendant for two crimes upon his plea of guilty, for the
reason that without my concurrence there would be no sufficient number
of votes to impose the penalty for the more serious crime.

Endnotes:chanroblesvirtuallawlibrary
1. Chief Justice Paras, and Justices Bengson, Alex. Reyes, Bautista Angelo,
Concepcion, Reyes (J. B. L.) and Felix.
2. Art. 134. Rebellion or insurrection. How committed. The crime of
rebellion or insurrection is committed by rising publicly and taking arms
against the Government for the purpose of removing from the allegiance to
said Government or its laws, the territory of the Philippine Islands or any part
thereof of any body of land, naval or other armed forces, or of depriving the
chief Executive or the Legislative, wholly or partially, of any of their powers
or prerogatives.
3. i. e. engaging in combat; chan roblesvirtualawlibrarynot engaging in
war as erroneously stated in English translation. Hence the prosecutions
arguments based on alleged violations of the laws of war by the accused
seem out of place.