FIRST DIVISION SPO3 Alcantara and PO3 Rasca) to conduct an investigation.

At around 2:30 in
that same afternoon, the team arrived at Brgy; Artacho and went straight to the
G.R. No. 128822 May 4, 2001 house of accused Pasudag. SPO3 Fajarito looked for accused Pasudag and asked
him to bring the team to his backyard garden which was about five (5) meters
away.6
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO PASUDAG y BOKANG @ "BERTING, accused-appellant. Upon seeing the marijuana plants, the policemen called for a photographer, who
took pictures of accused Pasudag standing besides one of the marijuana
plants.7 They uprooted seven (7) marijuana plants. The team brought accused
PARDO, J.:
Pasudag and the marijuana plants to the police station.8
The case is an appeal from the decision1 of the Regional Trial Court, Pangasinan,
Branch 46, Urdaneta finding accused Alberto Pasudag y Bokang guilty beyond At the police station, accused Pasudag admitted, in the presence of Chief of Police
reasonable doubt of illegal cultivation of marijuana2 and sentencing him Astrero, that he owned the marijuana plants.9 SPO3 Fajarito prepared a
confiscation report10 which accused Pasudag signed.11 He kept the six marijuana
to reclusion perpetua and to pay a fine of P500,000.00, without subsidiary penalty
plants inside the cabinet in the office of the Chief of Police and brought the tallest
and accessories of the law.
plant12 to the PNP Crime Laboratory for examination. 13
On December 17, 1996, 4th Assistant Provincial Prosecutor of Pangasinan
Emiliano M. Matro filed with the Regional Trial Court, Pangasinan, Urdaneta an Major Theresa Ann Bugayong Cid, a forensic chemist at the PNP Crime
Laboratory, receive the specimen14 on October 11, 1995. She testified that she took
Information3 charging accused Alberto Pasudag y Bokang with violation of R.A.
some leaves from the marijuana plant because the leaves had the most
No. 6425, Sec. 9, reading as follows:
concentration of tetrahydrocannabinol. As per her Chemistry Report No. D-O87-
95,15 the examination was positive for marijuana (tetrahydrocannabinol).16
"That on or about September 26, 1995 and prior dates thereto at barangay
Artacho, municipality of Sison, province of Pangasinan and within the
On March 18, 1997, the trial court rendered a decision finding the accused guilty
jurisdiction of this Honorable Court, the above-named accused, did, then
as charged and, taking into consideration his educational attainment (he reached
and there willfully, unlawfully and feloniously plant, cultivate, and
only grade IV), imposed the minimum of the imposable penalty, thus:
culture seven (7) hills of marijuana in the land tilled by him and situated
beside the house of the accused, without authority or permit to do so.
"WHEREFORE, JUDGMENT is rendered CONVICTING ALBERTO
PASUDAG of the crime charged in the information and he is hereby
"Contrary to Sec. 9 of R.A. 6425 as amended."
sentenced to suffer the penalty of Reclusion Perpetua and to pay a fine of
P500,000.00 without subsidiary penalty and other accessories of the law.
On February 10, 1997, the trial court arraigned the accused. He pleaded not
guilty.4 Trial ensued.
"The 7 fully grown marijuana plants are confiscated in favor of the
government.
On September 26, 1995, at around 1:30 in the afternoon, SPO2 Pepito Calip of the
PNP Sison, Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations.
He urinated at a bushy bamboo fence behind the public school. About five (5) "The Warden of Urdaneta, Bureau of Jail Management and Penology, is
meters away, he saw a garden of about 70 square meters. There were marijuana hereby ordered to commit the body of Alberto Pasudag to the National
Bilibid Prison immediately upon receipt hereof.
plants in between corn plants and camote tops. He inquired from a storekeeper
nearby as to who owned the house with the garden. The storeowner told him that
Alberto Pasudag owned it.5 "SO ORDERED.

SPO2 Calip went to the Police Station and reported to Chief of Police Romeo C. "Done this 17th day of March, 1997, at Urdaneta, Pangasinan.
Astrero. The latter dispatched team (composed of SPO2 Calip, SPO3 Fajarito,
 (Sgd. ) MODESTO C. JU ANSON
Judge"17
Hence, this appeal. 18
In his brief, accused-appellant contended that the trial court erred in finding that
the marijuana plant submitted for laboratory examination was one of the seven (7)
marijuana plants confiscated from his garden; that the trial court erred in
concluding that the confiscation report was not an extrajudicial admission which
required the intervention of his counsel; and in convicting him on the basis of
inference that he planted, cultivated and cultured the seven (7) plants, owned the
same or that he permitted others to cultivate the same.19
The Solicitor General contended that accused-appellant admitted before the lower
court that tile specimen20 was one of the plants confiscated in his backyard; that
appellant was not under custodial investigation when he signed the confiscation
report; and that the inferences deduced by the lower court strengthened the
conviction of accused-appellant..21
"Lawmen cannot be allowed to violate the very law they are expected to
enforce."29
"The Court is not unmindful of the difficulties of law enforcement agencies in
suppressing the illegal traffic of dangerous drugs. However, quick solutions of
crimes and apprehension of malefactors do not justify a callous disregard of the
Bill of Rights."30 We need not underscore that the protection against illegal search
and seizure is constitutionally mandated and only under specific instances are
searches allowed without warrants."31 "The mantle of protection extended by the
Bill of Rights covers both innocent and guilty alike against any form of high
handedness of law enforcers, regardless of the praise worthiness of their
intentions."32
With the illegal seizure of the marijuana plants subject of this case, the seized
plants are inadmissible in evidence against accused-appellant.33
The arrest of accused-appellant was tainted with constitutional infirmity. The
testimony of SPO3 Jovencio Fajarito34reveals that appellant was not duly informed
of his constitutional rights, thus: "

We find the appeal meritorious. "ATTY: ESTRADA:

As a general rule, the procurement of a search warrant is required before a law Q: In fact, you went to the house of Alberto Pasudag?
enforcer may validly search or seize the person, house, papers or effects of any
individual.22 The Constitution provides that "the right of the people to be secure in A: Yes sir.
their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, x x x." 23 Any Q: And in fact you invited him to the place where marijuana plants were
evidence obtained in violation of this provision is inadmissible.24 planted?

In tile case at bar, the police authorities had ample opportunity to secure from the A: Yes sir.
court a search warrant. SPO2 Pepito Calip inquired as to who owned the
house.25 He was acquainted with marijuana plants and immediately recognized that
Q: Then and there, you started asking question from him?
some plants in the backyard of the house were marijuana plants. 26 Time was not of
the essence to uproot and confiscate the plants. They were three months old 27 and
there was no sufficient reason to believe that they would be uprooteds on that same A: Yes sir.
day.
Q: In fact you started asking questions to elucidate from him information
28
In People vs. Valdez the Court ruled that search and seizure conducted without of admission regarding the ownership of the plants in question?
the requisite judicial warrant is illegal and void ab initio. The prosecution's
evidence clearly established that the police conducted a search of accused's A: I only asked who really planted and cultivated the plants sir.
backyard garden without a warrant; they had sufficient time to obtain a search
warrant; they failed to secure one. There was no showing of urgency or necessity
for the warrantless search, or the immediate seizure of the marijuana plants.
Q: Before you propounded questions to Alberto Pasudag, as according to
you, you were already informed that he was the cultivator by some per
sons whose name until now you do not know?
A: Yes sir.
Q: Did you not inform Alberto , Pasudag his constitutional rights?
A: I did not inform him because only when I will took (sic) his statement
in the presence of his counsel and to be reduced in writing, sir.
Q: What you want to impress, you will inform only a person of his
constitutional rights if you take his statement in writing?
A: Yes sir.
Q: Is that your method?
A: I informed the accused if l have to place it is statement into writing,
sir.
Q: According to you, you invited Alberto Pasudag to the alleged place
where the marijuana were planted, then and there, you asked him who
planted the same, and according to you, he said he planted the same?
A: Yes sir.
xxx xxx xxx
Q: According to you, you brought Alberto Pasudag to the Office of the
Chief of Police of Sison, Pangasinan?
A: Yes sir.
Q: In fact the Chief of Police was there?
A: Yes sir.
Q: Romeo Ast.rero was the Senior Inspector? ,
A: Yes sir. Q: In other words, SPO2 Calip, Alcantara, Romeo Rasca and
Alberto Pasudag were inside the office of the Chief of Police?
A: Yes sir.
Q: And according to you, Alberto Pasudag was interrogated by the Chief
of Police ?
A: Yes sir:
Q: In fact the Chief of Police was asking Alberto Pasudag in your
presence? who planted the marijuana plants and according to you, Alberto
Pasudag admitted in your presence that he planted the alleged marijuana
plants?
A: Yes sir.
Q: Before Chief Inspector Romeo Astrero interrogated Alberto Pasudag,
he did not also inform Alberto Pasudag his constitutional rights,
particularly the rights of a person under custodial interrogation?
A: What I know, he just asked Alberto Pasudag the veracity whether or
not he planted the said plants.
Q: In other words, your answer is, your Chief of Police did not inform
Alberto Pasudag his constitutional rights?
A: No sir." (emphasis supplied)
After the interrogation, SPO3 Fajarito prepared a confiscation report,35 which was
part of the investigation.36Accused-Appellant signed the confiscation report.37 In
both the interrogation and the signing of the confiscation receipt, no counsel
assisted accused-appellant. He was the only civilian present in the Office of the
Chief of Police.38
We do not agree with the Solicitor General that accused-appellant was not under
custodial investigation when he signed the confiscation receipt. It has been held
repeatedly that custodial investigation commences when a person is taken into
custody and is singled out as a suspect in the commission of a crime under
investigation and the police officers begin to ask questions on the suspect's
participation therein and which tend to elicit an admission.39Obviously, accused-
appellant was a suspect from the moment the police team went to his house and
ordered the uprooting of the marijuana plants in his backyard garden.
"The implied acquiescence to the search, if there was any, could not have been
more that mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview of the
constitutional guarantee."40 Even if the confession or admission were "gospel
truth", if it was made without assistance of counsel and without a valid waiver of
such assistance, the confession is inadmissible in evidence.41
In light of the foregoing, we uphold the constitutional right of accused-appellant to
a presumption of innocence. The prosecution failed to establish his guilt beyond
reasonable doubt.
WHEREFORE, the decision of the trial court is hereby REVERSED and SET
ASIDE. Accused-appellant ALBERTO PASUDAG y
BOKANG is ACQUITED of the crime charged for lack of proof beyond
reasonable doubt. The Director of Corrections is hereby directed to forthwith
release accused-appellant unless he is held for another case, and to inform the
Court of the action taken hereon within ten (10) days from notice.
Costs de oficio.
SO ORDERED. 1wphi1.nt
Davide, Jr., C.J., Puna, Kapunan, and Ynares-Santiago, JJ. , concur.
FIRST DIVISION
G.R. No. 112177 January 28, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TITO ZUELA y MORANDARTE, MAXIMO VELARDE y DE LOS REYES,
and NELSON GARCIA y TEMPORAS,accused-appellants.
PARDO, J.:
The case is an appeal of accused Maximo Velarde y de los Reyes, Nelson Garcia y
Temporas and Tito Zuela y Morandarte from the decision1 of the Regional Trial
Court, Camarines Sur, Libmanan, Branch 24, finding them guilty beyond
reasonable doubt of robbery with homicide and sentencing each of them
to reclusion perpetua, and to pay jointly and severally the amount of one hundred
thousand (P100,000.00) pesos to the heirs of Maria Abendao and John Abendao,
and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, without
subsidiary imprisonment in case of insolvency, and to pay the costs. 2
On July 29, 1985, Assistant Provincial Fiscal Julian C. Ocampo III filed with the
Regional Trial Court, Libmanan, Camarines Sur an information charging accused
Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y
Morandarte with "robbery with triple homicide" committed as follows:
That in the evening of April 27, 1985 in Camagong, Cabusao, Camarines
Sur, Philippines, the above-named accused, conspiring and confederating
together and mutually aiding each other, with intent to gain, did then and
there, willfully, unlawfully and feloniously, with violence and
intimidation gainst [sic] persons, that is by shooting and stabbing one
Hegino Hernandez, Sr., Maria S. Abendao and John-John Abendao,
thereby inflicting upon them mortal injuries that caused their
instantaneous death, take, rob and carry away the following personal
properties belonging to the said Maria Abendao, to wit:
(1) Cash money P 21,000.00
(2) one gold ring P 750.00
(3) one Seiko wrist watch P 1,250.00
P 23,000.00
That as a consequence of the felonious act of the accused, the heirs of the
deceased suffered damages in the amount of P25,000.00 each,
representing indemnity for death, loss of earning capacity and moral
damages.
CONTRARY TO LAW.3
On June 1, 1985 Maximo Velarde was arrested at Magallanes, Sorsogon, while
accused Nelson Garcia and Tito Zuela were arrested at Cabusao, Camarines Sur on
June 4, 1985 and June 9, 1985, respectively.
On March 26, 1987, all three accused, were arraigned with the assistance of their
counsel, and pleaded not guilty to the charge. Trial ensued.
The evidence established the following facts:
Maria Abendao was engaged in business. She has a store operated a passenger
jeepney and engaged in the buy and sale of palay. Her house cum store was beside
that of her sister Romualda Algarin's house, by the roadside in Barcelonita,
Cabusao, Camarines Sur. Romualda also had a store.1wphi1.nt
Accused Nelson Garcia was Maria's store helper. Accused Tito
Zuela alias "Anting" helped Romualda in her store during palay season. The other
accused Maximo Velarde was known to Romualda because she met him at a
birthday party held at Maria's house on April 19, 1985. The three accused were
friends.
On April 27, 1985, Maria made three (3) deliveries of palay on board to her
jeepney, driven by Hegino Hernandez, Jr., to the ricemill of Gerardo Benitez in
San Juan, Libmanan, Camarines Sur. Every delivery costs seven thousand
(P7,000.00) pesos. The three deliveries were made at 9:00 in the morning, 2:00 in
the afternoon and 7:30 in the evening.4
Between 6:00 and 7:00 in the evening of that day, from a distance of five (5) arms
length, Romualda saw the three (3) accused board the jeepney of Maria, bound for
San Juan, Libmanan, Camarines Sur. Because the jeepney was filled with palay,
they merely hold on the railing of the jeepney.5 There were other passengers
namely, Pablo Abendao and Roberto Echiaca.6
Gerardo Atienza, the buyer of palay, saw Maximo inside the jeepney during the
second and third delivery of palay to his ricemill.7 For each delivery, Gerardo paid
Maria the amount of seven thousand (P7,000.00) pesos.
The following morning, the bodies of Hegino Hernandez, Maria and John-John
Abendao were found in rigor mortiscondition at New Poblacion, Cabusao,
Camarines Sur.8
Dr. Restituto Sampilo, municipal health officer of Cabusao, found Maria in a
reclining position on the front seat of the jeepney. John was in a semi-kneeling
position, facing his mother with both hands clasping her left hand. Hegino was at
the steering wheel with his body, from the abdomen up, resting on the side of the
vehicle and his head outside of it.9 A bullet that exited from Hegino's left eyebrow
caused the wound near his right ear.10
Maria had a horizontal stab wound at the front part of her neck just above the
xyphoid process.11 Her seven (7) year old son, John, had a three (3) inch slashed
horizontal wound at the front base of the neck, a two (2) inch wound on the left
upper arm and two (2) stab wounds on the lateral side of the neck at the junction of
the right shoulder.12Hegino had a small wound with slightly depressed edges,
about an inch from the highest tip of the right ear, a wound with everted and
lacerated edges above the middle part of the left eyebrow, and seven (7) stab
wounds at the back.13
Though there were no eyewitnesses, the prosecution established how the crime
was committed with the testimony of Romualda Algarin, which was in turn based
on the extrajudicial admission given by Maximo Velarde to Romualda when she
visited the latter at the Camaligan municipal jail on June 6, 1985.
Maximo, Tito and Nelson conceived the plan to hold-up Maria while drinking in
front of Romualda's store because Maximo needed money for his fare to Manila.
When the palay-laden jeepney of Maria left for Libmanan, Camarines Sur
Maximo, Tito and Nelson boarded it. They alighted at sitio Cagumpis, Camagong,
Cabusao, Camarines Sur to attend a wedding.14 Maximo was supposed to board the
jeepney on its way back to Barcelonita, while the other two (2) accused, Tito and
Nelson would wait along the road at the crossing of New Poblacion and
Camagong, Camarines Sur to board the jeepney and hold-up Maria.
Everything went according to plan. Nelson and Tito hailed the jeepney at the
crossing of Cabusao, Camarines Sur. Upon reaching an uninhabited place,
Tito alias "Anting" told Velarde: "Oragui na ngaya ang driver." 15 Maximo poked a
gun at the driver and shot him. He also shot Maria at the neck when the latter
shouted.16
Nelson and Tito alighted from the jeepney. Nelson went to the front side of the
jeepney, while Tito approached the right front side of the jeepney, in the process
stepping on the sleeping John-John who was then awakened. The boy stood up and
said, "You will see I will tell my father that you killed my mother." 17 To avoid
being identified by the boy, Tito told Maximo "Oragui na ini."18 Maximo took hold
of the boy's hair and slashed his neck.
Tito took Maria's money and divided it, each accused receiving about seven
thousand (P7,000.00) pesos from the loot.
Tito and Nelson went back to Barcelonita, Cabusao, Camarines Sur. Maximo
proceeded to Manila.
On June 1, 1985, Lt. Ernesto J. Idian, Station Commander, Cabusao Police Station,
Cabusao, Camarines Sur assisted by two (2) other policemen, arrested Maximo in
Magallanes, Sorsogon. Though no warrant of arrest had been issued, Maximo was
immediately brought to the Camaligan police station in Camaligan, Camarines Sur
where he was investigated and asked to give a written statement in the presence of
Atty. Jose Ocampo from the Citizen's Legal Assistance Office (CLAO), Naga
City.19
On June 4, and 9, 1985, Tito and Nelson were taken into police custody without a
warrant. They underwent custodial investigation without the assistance of counsel
because no lawyer could be found in Cabusao, Camarines Sur.
On the last page of each accused's confession appeared a statement, in their own
handwriting, to the effect that they voluntarily gave their statements and that no
one coerced or promised them anything to admit responsibility for the crime.
Maximo, Nelson and Tito signed their individual statements before Judge Lore R.
Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur on
three (3) different dates.20 She followed the same procedure and line of
questioning, using the local dialect, in ascertaining the voluntariness of the three
(3) accused's confessions. She ordered Lt. Idian and his companions to leave her
and the accused inside the chamber.21 Satisfied that they were properly apprised of
their rights and that they voluntarily executed their statements, she had them sign
their individual extrajudicial statements.
Antonio Abendao, the husband of Maria, was working at Saudi Arabia when his
family was killed. He came to know about the tragic death of his wife and son
through an overseas call from his brother Renato Abendao. When he learned
about it, he became unconscious. He arrived in the Philippines five (5) days
after.22 He knew Nelson Garcia because he was the son of his cousin. He was also
familiar with Tito Zuela, but he did not know Maximo Velarde. He spent twenty
thousand (P20,000.00) pesos for the funeral of his wife and son. He gave one
thousand (P1,000.00) pesos financial assistance to the family of their driver,
Hegino.23
On the other hand Maximo, Tito and Nelson interposed common defenses: (1)
denial and (2) that they were tortured and forced to make a confession. In addition,
Tito and Nelson claimed they were not assisted by counsel when their confessions
were taken, while Maximo alleged the defense of alibi saying that he did not leave
Magallanes, Sorsogon anytime in 1985.
On June 1, 1985, five (5) persons, led by Lt. Idian, went to the house of Maximo
Velarde in Magallanes, Sorsogon to fetch him because his parents wanted him at
Cabusao, Camarines Sur as his brother Benito Velarde died. He was shown the
picture of the cadaver of his brother. Maximo went with the group of Lt. Idian on
board a red car and traveled to Naga City, arriving there between 7:00 and 8:00 in
the evening.
In a dark place before reaching Naga City, the driver stopped the vehicle to
urinate. Before the driver could return, Maximo felt a hard object hit his head and
he passed out. When he regained consciousness, he was already handcuffed.
Pointing a gun at him, Lt. Idian told him that he had two choices, either to die or
sign the statement they prepared because his brother had wronged them. He was
warned not to tell anyone that he was mauled. Thereafter, they proceeded to the
Camaligan municipal jail.
Two days later or on June 3, 1985, Maximo was brought out of the jail and
ushered into a small room where he saw three persons, namely Lt. Idian, Atty. Jose
Ocampo from CLAO; Naga City and Pat. Gonsalo Refe, a police investigator from
Cabusao, Camarines Sur. Atty. Ocampo read to him the contents of a prepared
statement, which in substance mentioned that some people died and that he was
responsible for their death. Maximo refused to sign. Atty. Ocampo stepped out of
the room, followed by Lt. Idian and he overheard that he would be made to sign
the statement in Atty. Ocampo's office in Naga City. Atty. Ocampo then left and
Lt. Idian returned to the room.
Upon Lt. Idian's return to the smaller room, he kicked Maximo in the stomach and
poked a gun at him. Consumed by fear, Maximo promised that he would sign the
prepared statement. He was then handed a piece of paper and ordered to copy its
contents on the prepared statement. Found on page 5 of his extrajudicial
confession was this statement, in his own handwriting:
Opo binasa ko po ang apedabeth na ito na may 5# pahina na pawang
totoo at sasareling kagustohan at walang nantakot o nangako.24
On June 4, 1985, Maximo again signed the statement before Judge Lore R.
Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur.
From the time accused Maximo was arrested, he was never released. Maximo
denied that he saw and talked to Romualda on June 6, 1985 at the Camaligan
municipal jail because he had been detained at the Libmanan municipal jail since
June 4, 1985.
For his part, Nelson Garcia denied any knowledge of the crime. On June 4, 1985,
the group of Pat. Gonsalo Refe went to his house and invited him to the office of
Lt. Idian. He was brought to the Camaligan Police Station. Upon their arrival, Lt.
Idian talked to him and tried to convince him to confess to the killing of the
Abendaos. Because Nelson refused, Lt. Idian brought him upstairs and mauled
him. He was transferred to Nage City jail, where he was detained for two (2)
hours.
Thereafter, he was brought to the Cabusao Police Station where Pat. Rodolfo O.
Cario subjected him to another investigation. Because of his continued refusal to
confess, he was mauled again, this time by Pat. Cario.
To avoid further injury to his person, on June 5, 1985, Nelson Garcia was forced to
sign the prepared statement. He was neither informed of its contents nor assisted
by counsel. He was handed a piece of paper, the contents of which he was ordered
to copy, in his own handwriting, and in substance was similar to what Maximo
was ordered to copy as his own extrajudicial statement. He was brought to the
office of Judge Bagalacsa that same afternoon so that he could sign his
extrajudicial statement.
From the time he was invited to the office of Lt. Idian, Nelson was never released
from police custody. He was first detained at the Libmanan municipal jail, and
later on transferred to the Tinangis Penal Farm in Pili, Camarines Sur. Though he
suffered physically from the beatings he got from the policemen, he was never
permitted to see a doctor. His relatives were not able to visit or talk to him because
the policemen prohibited visitors.25
Like Nelson, Tito alias "Anting," denied participation in the crime. On July 9,
1985, Pat. Refe invited him to the office of Lt. Idian in Cabusao, Camarines Sur.
Upon arrival at the police station, he was investigated about his knowledge of the
crime. Failing to elicit any information from him, he was brought to Libmanan jail
where he spent the night.
The following day, Tito was again brought to Cabusao Police Station and
presented to Lt. Idian. In Lt. Idian's office, he was investigated about his
involvement in the crime. When he could not provide any answer, he was made to
board the police jeep, to be brought back to the Libmanan jail.
Along the way, the police jeep stopped and Pat. Cabrera got off and kicked Tito
who fell to the ground. He heard a gunshot and was shown the piece of paper that
he was ordered to sign before Judge Bagalacsa. He was threatened with death
should he refuse to sign the prepared statement. Out of fear for his life, Tito
promised to sign. Thereafter, they boarded the police jeep and proceeded to the
office of Judge Bagalacsa Libmanan, in Camarines Sur.
Upon arrival at the office of Judge Bagalacsa, he was ordered to sign the statement
without the assistance of counsel and without being informed of its contents.
Thereafter, he was brought to Libmanan municipal jail and later to Tinangis Penal
Farm. Like his co-accused, he was never released from police custody from the
time of arrest.
On August 26, 1993, the trial court promulgated its decision convicting the three
(3) accused of robbery with homicide, the dispositive portion of which reads:
WHEREFORE, after a careful and serious evaluation of the evidence
presented by the prosecution and the defense, the Court is morally
convinced beyond reasonable doubt, that the three (3) accused Maximo
Velarde, Tito Zuela and Nelson Garcia had committed the crime of
Robbery with Homicide and, therefore, sentences them to suffer the
penalty of imprisonment of reclusion perpetua and to pay jointly and
severally an indemnity in the amount of ONE HUNDRED THOUSAND
(P100,000.00) PESOS for the Heirs of Maria Abendao and John
Abendao and FIFTY THOUSAND (P50,000.00) PESOS for the Heirs of
Hegino Hernandez, without imprisonment in case of insolvency, and to
pay the costs.
SO ORDERED.
GIVEN this 26th day of July, 1993 at Libmanan, Camarines Sur,
Philippines.
(Sgd.) SALVADOR G. CAJOT
Presiding Judge26
On the same day, all three (3) accused filed a notice of appeal with the trial court.
In their appeal, accused-appellants claim that the trial court erred in:
(1) relying on Maximo Velarde's extra-judicial confession
notwithstanding the violation of his constitutional rights;
(2) giving full faith and credit to Romualda Algarin's testimony; and
(3) finding all three (3) accused guilty as charged despite the
prosecution's failure to prove their guilt beyond reasonable doubt.
Considering that there were no eyewitnesses to the commission of the crime, the
extra-judicial confessions of the three (3) accused play a pivotal role in the
determination of their culpability. The Court is duty-bound, therefore, to resolve
the issue of whether or not the extra-judicial confessions were executed in
accordance with the provisions of the 1973 Constitution, in light of the fact that the
crime took place in 1985.
The pertinent provision of the 1973 Constitution provides:
Art. IV, Section 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an offense
 shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means,
which vitiates the free will, shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence. 27
The right to counsel attaches the moment an investigating officer starts to ask
questions to elicit information on the crime from the suspected offender. It is at
this point that the law requires the assistance of counsel to avoid the pernicious
practice of extorting forced or coerced admissions or confessions from the person
undergoing interrogation. In other words, "the moment there is a move or even
urge of said investigators to elicit admissions or confessions or even plain
information which may appear innocent or innocuous at the time, from said
suspect, he should then and there be assisted by counsel, unless he waives the
right, but the waiver shall be made in writing and in the presence of counsel." 28
Lt. Idian's team apprehended appellant Maximo in Magallanes Sorsogon on June
1, 1985 when no warrant had been issued for his arrest. Immediately thereafter, the
arresting peace officers investigated appellant Maximo. His statement was reduced
in writing when they were in Camaligan, Camarines Sur. It was in Camaligan that
CLAO lawyer Ocampo was summoned to assist appellant Maximo in the
execution of his written confession. Atty. Ocampo was not present during the
entire duration that accused Maximo was subjected to custodial investigation as
could be inferred from the testimony of Pat. Rodolfo Cario, to wit:
Q: And after taking the statement of Velarde, what did you do with the
statement of Velarde?
A: It was presented to Atty. Ocampo.
Q: Do you want to tell me that inspite of the fact that he was present
when the confession was made you still present the statement to Atty.
Ocampo?
A: In order to let him sign the statement.
Q: And where did Atty. Ocampo sign the confession of Velarde?
A: It was sign [sic] at Naga because he went ahead.
Q: Do you mean to tell me now that after the confession was made, the
confession was left to you and after the confession was brought to his
office at the CLAO Office in Naga, is that what you want to tell this
court.
A: We went to Naga with Lt. Idian and Velarde.
Q: But it remains a fact that Atty. Ocampo was already at Naga when the
statement of Velarde was presented to him for signature, is that correct?
A: Yes he went ahead to Naga.29
There was no evidence that Maximo executed a waiver of his right to counsel. In
light of these facts, we are constrained to the rule that Maximo Velarde's extra-
judicial statement is inadmissible in evidence.30 "An uncounselled extra-judicial
confession without a valid waiver of the right to counsel that is, in writing and
in the presence of counsel is inadmissible in evidence."31
The respective sworn statements of appellants Tito and Nelson were likewise
inadmissible in evidence because they were executed without the assistance of
counsel. Despite the fact that the reason for the absence of lawyer during the
custodial investigation was the scarcity of lawyers in the area, the Court could not
be lenient in this case. The absence or scarcity of lawyers in any given place is not
a valid reason for defying the constitutional mandate on counseled confessions.
Contrary to the ruling of the trial court, the defect in the confessions of Tito and
Nelson was not cured by their signing the extra-judicial statements before Judge
Bagalacsa.
Nevertheless, the infirmity of accused-appellants' sworn statements did not leave a
void in the prosecution's case. Accused-appellant Maximo repeated the contents of
his sworn statement to Romualda Algarin who, in turn, related these in court. Such
declaration to a private person is admissible in evidence against accused-appellant
Maximo pursuant to Rule 130, Section 26 of the Rules of Court stating that the
"act, declaration for omission of a party as to a relevant fact may be given in
evidence against him." The trial court, therefore, correctly gave evidentiary value
to Romualda's testimony. In People vs. Maqueda,32 we held:
However, the extrajudicial admissions of Maqueda to Prosecutor Zarate
and to Ray Dean Salvosa stand on a different footing. These are not
governed by the exclusionary rules under the Bill of Rights. Masqueda
voluntarily and freely made them to Prosecutor Zarate not in the course of
an investigation, but in connection with Maqueda's plea to be utilized as a
state witness; and as to the other admission, it was given to a private
person. The provisions of the Bill of Rights are primarily limitations on
government, declaring the rights that exist without the governmental
grant, that may not be taken away by government and that government
has the duty to protect; or restrictions on the power of the government
 found "not in particular specific types of action prohibited, but in the
general principle that keeps alive in the public mind the doctrine that
governmental power is not unlimited." They are the fundamental
safeguards against aggressions of arbitrary power, or state tyranny and
abuse of authority. In laying down the principles of the government and
fundamental liberties of the people, the Constitution did not govern the
relationships between individuals.
Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party,
are admissible in evidence against the former under Section 26, Rule 130
of the Rules of Court. In Aballe vs. People (183 SCRA 196 [1990]), this
Court held that the declaration of an accused expressly acknowledging
his guilt of the offense may be given in evidence against him and any
person, otherwise competent to testify as a witness, who heard the
confession, is competent to testify as to the substance of what he heard if
he heard and understood it. The said witness need not repeat verbatim the
oral confession; it suffices if he gives its substance. By analogy, that rule
applies to oral extrajudicial admission. (Emphasis supplied)33
And in the recent case of People vs. Andan34 the Court reiterated the doctrine
enunciated in the Maqueda case. In Andan, the Court said that "when the accused
talked with the mayor as confidant and not as a law enforcement officer, his
uncounselled confession did not violate his constitutional rights. Constitutional
procedures on custodial investigation do not apply to a spontaneous statement, not
elicited through questioning by the authorities, but given in an ordinary manner
whereby appellant orally admitted having committed the crime." Of course,
accused-appellant Maximo attempted to discredit Romualda's credibility as a
witness when he swore that he could not have been in Camaligan on June 6, 1985
because since June 4, 1985 until some three weeks later, he was detained at the
Libmanan jail.35 The trial court correctly disregarded this self-serving
uncorroborated assertion.
The defense failed to attribute any ill-motive on the part of Romualda for testifying
on accused-appellant Maximo's admission and therefore the presumption that in so
testifying, she was impelled by no other reason than to tell the truth, stands. The
fact that she is related to two of the victims did not render her testimony
incredible. Relationshipper se is not proof of prejudice.36 She might have been
mistaken as to the date when she talked with accused-appellant Maximo while he
was detained considering the more than three-year gap between June 1985 and
September to October 1988 when Romualda testified. However, it is not necessary
that the witness should be able to fix accurately the date of the conversation in
which the admission was made. What is important is that the witness is able to
state the substance of the conversation or declaration.37
Romualda's testimony on accused-appellant Maximo's admission sealed not only
the latter's fate but also that of appellants Tito and Nelson. The rule that an
extrajudicial confession is binding only upon the confessant and is not admissible
against his co-accused because the latter has no opportunity to cross-examine the
confessant and therefore, as against him, the confession is hearsay, 38 is not
applicable here. What is involved here is an admission, not a confession. Wharton
distinguished these terms as follows:
A confession is an acknowledgment in express terms, by a party in a
criminal case, of his guilt of the crime charged, while an admission is a
statement by the accused, direct or implied, of facts pertinent to the issue
and tending, in connection with proof of other facts, to prove his guilt. In
other words, an admission is something less than a confession, and is but
an acknowledgment of some fact or circumstance which in itself is
insufficient to authorize a conviction and which tends only to establish
the ultimate fact of guilt.39
Appellants Tito and Nelson were afforded the opportunity to cross-examine
witness Romualda on accused-appellant Maximo's declaration. They could have
questioned its veracity by presenting evidence in support of their defenses of
denial and alibi so they could put to test Romualda's credibility. Having failed to
do so, Romualda's testimony, which the trial court correctly considered as credible,
stands unscathed.
Romualda's testimony on the substance of accused-appellant Maximo's admission
standing alone, may not be the basis for conviction of the appellants. However,
such testimony, taken with circumstances duly established by the prosecution,
point unerringly to accused-appellants' culpability. These circumstances are: (1)
accused-appellants and the victims were all residents of Barcelonita, Cabusao,
Camarines Sur, a small barangay where everyone knew everybody; (2) accused-
appellants Tito and Nelson helped in the stores of the sisters Maria and Romualda
a week before the incident; (3) Romualda saw the three accused-appellants as they
boarded Maria's jeepney during its lastpalay delivery to Libmanan; (4) Gerardo
Atienza saw accused-appellant Maximo with Maria's group during the jeepney's
second delivery of palay; (5) Atienza saw accused-appellant Maximo riding in
Maria's jeepney after the last delivery; (6) after the commission of the crime,
accused-appellants Tito and Nelson no longer went to the store of Romualda; (7)
accused-appellants never attended the wake of the victims, and (8) accused-
appellant Maximo fled to Manila.
These circumstances form an unbroken chain, which, by themselves lead to a fair
and reasonable conclusion that accused-appellants were the culprits in the robbery
with homicide.40 Under the law, circumstantial evidence is sufficient basis for
conviction as long as: (1) there is more than one circumstance; (2) the facts from
which the inferences are derived are proved, and (3) the combination of all the
circumstances is such as to produce conviction beyond reasonable doubt.41 These
requisites were present in this case.
Accused-appellants' diverse course of action after the commission of the crime,
with accused-appellant Maximo going to Manila and accused-appellants Tito and
Nelson staying in Barcelonita, do not negate their guilt. As regards accused-
appellant Maximo, his flight to Manila and to Magallanes, Sorsogon with no
plausible explanation therefor is a clear indication of guilt.42 With respect to
accused-appellants Tito and Nelson, their decision to stay in Barcelonita did not
mean that they were not equally guilty as accused-appellant Maximo. As this
Court once said:
Accused-appellant argues that had he participated in the crime, his natural
reaction would have been to flee. We do not agree. Each culprit behaves
differently in externalizing and manifesting his guilt. Others may escape
or flee which circumstance is strongly indicative of guilt, while others
may remain in the same vicinity so as to create a semblance of normalcy,
careful not to arouse suspicion in the community.43
Conspiracy may be inferred from the acts of accused-appellants before, during and
after the commission of the crime, which indicate a joint purpose, concerted action
and concurrence of sentiments.44 Whenever homicide is committed as a
consequence or on the occasion of the robbery, all those who took part as
principals in the conspiracy are also guilty as principals in the special complex
crime of robbery with homicide although they did not actually take part in the
killing, unless there is no proof that they tried to prevent the crime. 45 There is no
evidence that any of the accused-appellants desisted from the malevolent intent of
the others to kill the victims during the robbery. As such, they shall equally bear
the responsibility for the resulting crime.
Treachery was not alleged in the information but the suddenness of the assault
upon Hegino and Maria from behind was proven reasonable doubt. As such,
treachery may be appreciated as a generic aggravating circumstance. 46 As regards
seven-year-old John, even if the manner by which he was attacked was not shown,
treachery may be deemed to have attended his killing. Treachery exists when an
adult person illegally attacks a child of tender years and causes his death. 47
The crime committed is the special complex crime of robbery with homicide
defined and penalized in Article 294 of the Revised Penal Code. The trial court
correctly considered the crime as robbery with homicide and not "robbery with
triple homicide" as charged in the information. The term "homicide" in Article
294(1) is used in its generic sense, embracing not only the act which results in
death but also all other acts producing anything short of death. 48 Neither is the
nature of the offense altered by the number of killings in connection with the
robbery.49 The multiplicity of victims slain on the occasion of the robbery is only
appreciated as an aggravating circumstance. This would preclude an anomalous
situation where, from the standpoint of the gravity of the offense, robbery with one
killing would be treated in the same way that robbery with multiple killings would
be.50
Under Article 294 (1) of the Revised Penal Code, robbery with homicide is
punishable by reclusion perpetua to death. By the presence of two aggravating
circumstances, namely, treachery and multiplicity of slain victims, the proper
penalty should be death in view of Article 63 (1) of the same Code. 51 However,
considering that when this case happened, the imposition of the death penalty was
proscribed, the proper imposable penalty was reclusion perpetua. The heinousness
of the crime they committed notwithstanding, accused-appellants may not be
deprived of such favorable factor in their case.
The Solicitor General's plea for modification of the penalty in accordance with
Republic Act No. 7659 which "has already expressly converted reclusion
perpetua into a divisible penalty" and on account of the decision in People
vs.Lucas,52 is untenable. It must be stressed that the Lucas ruling has been
reconsidered and, accordingly, the Court has held:
After deliberating on the motion and re-examining the legislative history
of R.A. No. 7659, the Court concludes that although Section 17 of the
R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty
(20) years and one (1) day to forty (40) years, there was no clear
legislative intent to alter its original classification as an indivisible
penalty. It shall then remain as an indivisible penalty.53
The trial court failed to award the heirs of Maria Abendao the amount of twenty
three thousand (P23,000.00) pesos in reimbursement of the stolen cash, ring and
wristwatch and the expenses amounting to twenty thousand (P20,000.00) pesos for
her wake and that of her son, which were duly proved. 54 The heirs are entitled to
those amounts as reparation of the damage caused by accused-appellants. They
shall also be liable for exemplary damages in view of the presence of two
aggravating circumstances in the commission of the crime.55
WHEREFORE, the Court AFFIRMS with MODIFICATION the decision of the
trial court. The Court renders judgment finding accused-appellants Tito Zuela y
Morandarte, Maximo Velarde y de los Reyes, Nelson Garcia y Temporas guilty
beyond reasonable doubt of robbery with homicide, defined and penalized under
Article 294 (1) of the Revised Penal Code, and sentences each of them to reclusion
perpetua with all its accessory penalties and to pay civil indemnity of one hundred
thousand (P100,000.00) pesos to the heirs of Maria Abendao and John Abendao
and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, Jr.
In addition, the Court sentences each of the accused-appellants solidarily to pay
the additional amounts of forty three thousand (P43,000.00) pesos as
reimbursement of damages to the heirs of Maria Abendao, and fifty thousand
(P50,000.00) pesos as exemplary damages to the heirs of each of the three (3)
victims.1wphi1.nt
With costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.
EN BANC
G.R. No. 129296 September 25, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABE VALDEZ y DELA CRUZ, accused-appellant.
DECISION
QUISUMBING, J.:
For automatic review is the decision1 promulgated on February 18, 1997, by the
Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case
No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable
doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No.
6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of
death by lethal injection.
In an Information dated September 26, 1996, appellant was charged as
follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill,
Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, who was
caught in flagrante delicto and without authority of law, did then and there
wilfully (sic), unlawfully and feloniously plant, cultivate and culture seven (7)
fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from
which dangerous drugs maybe (sic) manufactured or derived, to the damage and
prejudice of the government of the Republic of the Philippines.
"That the property where the said seven (7) fully grown marijuana plants were
planted, cultivated and cultured shall be confiscated and escheated in favor of the
government.
"CONTRARY TO LAW."2
On November 15, 1996, appellant was arraigned and, with assistance of counsel,
pleaded not guilty to the charge. Trial on the merits then ensued.
The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the
police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m.
of September 24, 1996, he received a tip from an unnamed informer about the
presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan,
Ibung, Villaverde, Nueva Vizcaya.3 The prohibited plants were allegedly planted
close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of
Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to
verify the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel
V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer
I. Balut. Inspector Parungao gave them specific instructions to "uproot said
marijuana plants and arrest the cultivator of same." 4
At approximately 5:00 o'clock A.M. the following day, said police team,
accompanied by their informer, left for the site where the marijuana plants were
allegedly being grown. After a three-hour, uphill trek from the nearest barangay
road, the police operatives arrived at the place pinpointed by their informant. The
police found appellant alone in his nipa hut. They, then, proceeded to look around
the area where appellant had his kaingin and saw seven (7) five-foot high,
flowering marijuana plants in two rows, approximately 25 meters from appellant's
hut.5 PO2 Balut asked appellant who owned the prohibited plants and, according to
Balut, the latter admitted that they were his.6 The police uprooted the seven
marijuana plants, which weighed 2.194 kilograms.7 The police took photos of
appellant standing beside the cannabis plants.8 Appellant was then arrested. One of
the plants, weighing 1.090 kilograms, was sent to the Philippine National Police
Crime Laboratory in Bayombong, Nueva Vizcaya for analysis.9 Inspector Prevy
Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon
microscopic examination of said plant, she found cystolitic hairs containing
calcium carbonate, a positive indication for marijuana. 10 She next conducted a
chemical examination, the results of which confirmed her initial impressions. She
found as follows:
"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected
marijuana plant placed inside a white sack with markings.
xxx
"FINDINGS: Qualitative examination conducted on the above stated specimen
gave POSITIVE result to the test for Marijuana, a prohibited drug." 11
The prosecution also presented a certification from the Department of
Environment and Natural Resources that the land cultivated by appellant, on which
the growing marijuana plants were found, was Lot 3224 of Timberland Block B,
which formed part of the Integrated Social Forestry Area in Villaverde, Nueva
Vizcaya.12 This lot was part of the public domain. Appellant was acknowledged in
the certification as the occupant of the lot, but no Certificate of Stewardship had
yet been issued in his favor.13
As its sole witness, the defense presented appellant. He testified that at around
10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in
Sitio Bulan when he was called by a person whose identity he does not know. He
was asked to go with the latter to "see something." 14 This unknown person then
brought appellant to the place where the marijuana plants were found,
approximately 100 meters away from his nipa hut.15 Five armed policemen were
present and they made him stand in front of the hemp plants. He was then asked if
he knew anything about the marijuana growing there. When he denied any
knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit
ownership of the plants.16 Appellant was so nervous and afraid that he admitted
owning the marijuana.17
The police then took a photo of him standing in front of one of the marijuana
plants. He was then made to uproot five of the cannabis plants, and bring them to
his hut, where another photo was taken of him standing next to a bundle of
uprooted marijuana plants.18 The police team then brought him to the police station
at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of
Barangay Sawmill, accompanied the police officers. Pascua, who bore a grudge
against him, because of his refusal to participate in the former's illegal logging
activities, threatened him to admit owning the marijuana, otherwise he would "be
put in a bad situation."19 At the police headquarters, appellant reiterated that he
knew nothing about the marijuana plants seized by the police.20
On cross-examination, appellant declared that there were ten other houses around
the vicinity of his kaingin, the nearest house being 100 meters away.21 The latter
house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace
officer who had a grudge against him. The spot where the marijuana plants were
found was located between his house and Carlito Pascua's. 22
The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was
offered to rebut appellant's claim that the marijuana plants were not planted in the
lot he was cultivating.23 Tipay presented a sketch he made,24 which showed the
location of marijuana plants in relation to the old and new nipa huts of appellant,
as well as the closest neighbor. According to Tipay, the marijuana plot was located
40 meters away from the old hut of Valdez and 250 meters distant from the hut of
Carlito Pascua.25 Tipay admitted on cross-examination that no surveyor
accompanied him when he made the measurements.26 He further stated that his
basis for claiming that appellant was the owner or planter of the seized plants was
the information given him by the police informer and the proximity of appellant's
hut to the location of said plants.27
Finding appellant's defense insipid, the trial court held appellant liable as charged
for cultivation and ownership of marijuana plants as follows:
"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of
cultivating marijuana plants punishable under section 9 of the Dangerous Drugs
Act of 1972, as amended, accused is hereby sentenced to death by lethal injection.
Costs against the accused.
"SO ORDERED."28
Appellant assigns the following errors for our consideration:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE THEIR
INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL SEARCH.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT NO.
6425 DESPITE THE INADMISSIBILITY OF
THE CORPUS DELICTI AND THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE
FAILURE OF THE PROSECUTION TO PROVE THAT THE LAND
WHERE THE MARIJUANA PLANTS WERE PLANTED IS A
PUBLIC LAND ON THE ASSUMPTION THAT INDEED
APPELLANT PLANTED THE SUBJECT MARIJUANA.29
Simply stated, the issues are:
(1) Was the search and seizure of the marijuana plants in the present case
lawful?
(2) Were the seized plants admissible in evidence against the accused?
(3) Has the prosecution proved appellant's guilt beyond reasonable doubt?
(4) Is the sentence of death by lethal injection correct?
The first and second issues will be jointly discussed because they are interrelated.
Appellant contends that there was unlawful search. First, the records show that the
law enforcers had more than ample time to secure a search warrant. Second, that
the marijuana plants were found in an unfenced lot does not remove appellant from
the mantle of protection against unreasonable searches and seizures. He relies on
the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898,
88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable
government intrusion protects people, not places.
For the appellee, the Office of the Solicitor General argues that the records clearly
show that there was no search made by the police team, in the first place. The OSG
points out that the marijuana plants in question were grown in an unfenced lot and
as each grew about five (5) feet tall, they were visible from afar, and were, in fact,
immediately spotted by the police officers when they reached the site. The seized
marijuana plants were, thus, in plain view of the police officers. The instant case
must, therefore, be treated as a warrantless lawful search under the "plain view"
doctrine.
The court a quo upheld the validity of the search and confiscation made by the
police team on the finding that:
"...It seems there was no need for any search warrant. The policemen went to the
plantation site merely to make a verification. When they found the said plants, it
was too much to expect them to apply for a search warrant. In view of the
remoteness of the plantation site (they had to walk for six hours back and forth)
and the dangers lurking in the area if they stayed overnight, they had a valid reason
to confiscate the said plants upon discovery without any search warrant. Moreover,
the evidence shows that the lot was not legally occupied by the accused and there
was no fence which evinced the occupant's desire to keep trespassers out. There
was, therefore, no privacy to protect, hence, no search warrant was required." 30
The Constitution31 lays down the general rule that a search and seizure must be
carried on the strength of a judicial warrant. Otherwise, the search and seizure is
deemed "unreasonable." Evidence procured on the occasion of an unreasonable
search and seizure is deemed tainted for being the proverbial fruit of a poisonous
tree and should be excluded.32 Such evidence shall be inadmissible in evidence for
any purpose in any proceeding.33
In the instant case, there was no search warrant issued by a judge after personal
determination of the existence of probable cause. From the declarations of the
police officers themselves, it is clear that they had at least one (1) day to obtain a
warrant to search appellant's farm. Their informant had revealed his name to them.
The place where the cannabis plants were planted was pinpointed. From the
information in their possession, they could have convinced a judge that there was
probable cause to justify the issuance of a warrant. But they did not. Instead, they
uprooted the plants and apprehended the accused on the excuse that the trip was a
good six hours and inconvenient to them. We need not underscore that the
protection against illegal search and seizure is constitutionally mandated and only
under specific instances are searches allowed without warrants.34 The mantle of
protection extended by the Bill of Rights covers both innocent and guilty alike
against any form of high-handedness of law enforcers, regardless of the
praiseworthiness of their intentions.
We find no reason to subscribe to Solicitor General's contention that we apply the
"plain view" doctrine. For the doctrine to apply, the following elements must be
present:
(a) a prior valid intrusion based on the valid warrantless arrest in which
the police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who have the
right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further search. 35
In the instant case, recall that PO2 Balut testified that they first located the
marijuana plants before appellant was arrested without a warrant. 36 Hence, there
was no valid warrantless arrest which preceded the search of appellant's premises.
Note further that the police team was dispatched to appellant's kaingin precisely to
search for and uproot the prohibited flora. The seizure of evidence in "plain view"
applies only where the police officer is not searching for evidence against the
accused, but inadvertently comes across an incriminating object. 37 Clearly, their
discovery of the cannabis plants was not inadvertent. We also note the testimony
of SPO2 Tipay that upon arriving at the area, they first had to "look around the
area" before they could spot the illegal plants.38 Patently, the seized marijuana
plants were not "immediately apparent" and a "further search" was needed. In sum,
the marijuana plants in question were not in "plain view" or "open to eye and
hand." The "plain view" doctrine, thus, cannot be made to apply.
Nor can we sustain the trial court's conclusion that just because the marijuana
plants were found in an unfenced lot, appellant could not invoke the protection
afforded by the Charter against unreasonable searches by agents of the State. The
right against unreasonable searches and seizures is the immunity of
one's person, which includes his residence, his papers, and other possessions. 39 The
guarantee refers to "the right of personal security" 40 of the individual. As appellant
correctly points out, what is sought to be protected against the State's unlawful
intrusion are persons, not places.41 To conclude otherwise would not only mean
swimming against the stream, it would also lead to the absurd logic that for a
person to be immune against unreasonable searches and seizures, he must be in his
home or office, within a fenced yard or a private place. The Bill of Rights belongs
as much to the person in the street as to the individual in the sanctuary of his
bedroom.
We therefore hold, with respect to the first issue, that the confiscated plants were
evidently obtained during an illegal search and seizure. As to the second issue,
which involves the admissibility of the marijuana plants as evidence for the
prosecution, we find that said plants cannot, as products of an unlawful search and
seizure, be used as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the court a quo to
have admitted and relied upon the seized marijuana plants as evidence to convict
appellant.
We now proceed to the third issue, which revolves around the sufficiency of the
prosecution's evidence to prove appellant's guilt. Having declared the seized
marijuana plants inadmissible in evidence against appellant, we must now address
the question of whether the remaining evidence for the prosecution suffices to
convict appellant?
In convicting appellant, the trial court likewise relied on the testimony of the
police officers to the effect that appellant admitted ownership of the marijuana
when he was asked who planted them. It made the following observation:
"It may be true that the admission to the police by the accused that he planted the
marijuana plants was made in the absence of any independent and competent
counsel. But the accused was not, at the time of police verification; under custodial
investigation. His admission is, therefore, admissible in evidence and not violative
of the constitutional fiat that admission given during custodial investigation is not
admissible if given without any counsel."42
Appellant now argues that his admission of ownership of the marijuana plants in
question cannot be used against him for being violative of his right to counsel
during the police investigation. Hence, it was error for the trial court to have relied
upon said admission of ownership. He submits that the investigation conducted by
the police officers was not a general inquiry, but was meant to elicit information
on the ownership of the marijuana plants. Appellant theorizes that since the
investigation had narrowed down to him, competent and independent counsel
should have assisted him, when the police sought information from him regarding
the ownership of the prohibited plants. Appellant claims the presumption of
regularity of duty of officers cannot be made to apply to his purported voluntarily
confession of ownership of the marijuana plants. Nor can it override his
constitutional right to counsel during investigation.
The Office of the Solicitor General believes otherwise. The OSG avers that
appellant was not yet under custodial investigation when he admitted to the police
that he owned the marijuana plants. His right to competent and independent
counsel, accordingly, had not yet attached. Moreover, appellants failure to impute
any false motive for the police officers to falsely accuse him indicates that the
presumption of regularity in the performance of official duties by police officers
was not sufficiently rebutted.
The Constitution plainly declares that any person under investigation for the
commission of an offense shall have the right: (1) to remain silent; (2) to have
competent and independent counsel preferably of his own choice; and (3) to be
informed of such rights. These rights cannot be waived except in writing and in the
presence of counsel.43 An investigation begins when it is no longer a general
inquiry but starts to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense.44 The moment the police try to elicit
admissions or confessions or even plain information from a person suspected of
having committed an offense, he should at that juncture be assisted by counsel,
unless he waives the right in writing and in the presence of counsel. 45
In the instant case we find that, from the start, a tipster had furnished the police
appellant's name as well as the location of appellant's farm, where the marijuana
plants were allegedly being grown. While the police operation was supposedly
meant to merely "verify" said information, the police chief had likewise issued
instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the
time the police talked to appellant in his farm, the latter was already under
investigation as a suspect. The questioning by the police was no longer a general
inquiry.46
Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the
cultivator of that marijuana so we just asked him and I think there is no need to
inform (him of) his constitutional rights because we are just asking him..." 47 In
trying to elicit information from appellant, the police was already investigating
appellant as a suspect. At this point, he was already under custodial investigation
and had a right to counsel even if he had not yet been arrested. Custodial
investigation is "questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way."48 As a suspect, two armed policemen interrogated appellant.
Behind his inquisitors were a barangay peace officer and three other armed
policemen.49 All had been dispatched to arrest him.50 From these circumstances, we
may infer that appellant had already been deprived of his freedom of action in a
significant way, even before the actual arrest. Note that even before he was
arrested, the police made him incriminatingly pose for photos in front of the
marijuana plants.
Moreover, we find appellant's extrajudicial confession flawed with respect to its
admissibility. For a confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be made with the assistance of
competent and independent counsel; (3) it must be express; and (4) it must be in
writing.51 The records show that the admission by appellant was verbal. It was also
uncounselled. A verbal admission allegedly made by an accused during the
investigation, without the assistance of counsel at the time of his arrest and even
before his formal investigation is not only inadmissible for being violative of the
right to counsel during criminal investigations, it is also hearsay. 52 Even if the
confession or admission were "gospel truth", if it was made without assistance of
counsel and without a valid waiver of such assistance, the confession is
inadmissible in evidence, regardless of the absence of coercion or even if it had
been voluntarily given.53
It is fundamental in criminal prosecutions that before an accused may be convicted
of a crime, the prosecution must establish by proof beyond reasonable doubt that a
crime was committed and that the accused is the author thereof. 54 The evidence
arrayed against the accused, however, must not only stand the test of reason,55 it
must likewise be credible and competent.56 Competent evidence is "generally
admissible" evidence.57 Admissible evidence, in turn, is evidence "of such a
character that the court or judge is bound to receive it, that is, allow it to be
introduced at trial."58
In the instant case, the trial court relied on two pieces of probative matter to
convict appellant of the offense charged.1wphi1 These were the seized marijuana
plants, and appellant's purportedly voluntary confession of ownership of said
marijuana plants to the police. Other than these proofs, there was no other
evidence presented to link appellant with the offense charged. As earlier discussed,
it was error on the trial court's part to have admitted both of these proofs against
the accused and to have relied upon said proofs to convict him. For said evidence
is doubly tainted.
First, as earlier pointed out, the seized marijuana plants were obtained in violation
of appellant's constitutional rights against unreasonable searches and seizures. The
search and seizure were void ab initio for having been conducted without the
requisite judicial warrant. The prosecution's very own evidence clearly establishes
that the police had sufficient time to obtain a warrant. There was no showing of
such urgency or necessity for the warrantless search or the immediate seizure of
the marijuana plants subject of this case. To reiterate, said marijuana plants cannot
be utilized to prove appellant's guilt without running afoul of the constitutional
guarantees against illegal searches and the inadmissibility of evidence procured
pursuant to an unlawful search and seizure.
Second, the confession of ownership of the marijuana plants, which appellant
allegedly made to the police during investigation, is not only hearsay but also
violative of the Bill of Rights. The purported confession was made without the
assistance of competent and independent counsel, as mandated by the Charter.
Thus, said confession cannot be used to convict appellant without running afoul of
the Constitution's requirement that a suspect in a criminal investigation must have
the services of competent and independent counsel during such investigation.
In sum, both the object evidence and the testimonial evidence as to appellant's
voluntary confession of ownership of the prohibited plants relied upon to prove
appellant's guilt failed to meet the test of Constitutional competence.
The Constitution decrees that, "In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved..." 59 To justify the conviction of the
accused, the prosecution must adduce that 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
for the accused.60 Absent the required degree of proof of an accused's guilt, he
is entitled to an acquittal.61 In this case, the seized marijuana plants linking
appellant to the crime charged are miserably tainted with constitutional infirmities,
which render these inadmissible "for any purpose in any proceeding." 62 Nor can
the confession obtained during the uncounselled investigation be used against
appellant, "it being inadmissible in evidence against him." 63 Without these
proffered but proscribed materials, we find that the prosecution's remaining
evidence did not even approximate the quantum of evidence necessary to warrant
appellant's conviction. Hence, the presumption of innocence in his favor stands.
Perforce, his acquittal is in order.
In acquitting an appellant, we are not saying that he is lily-white, or pure as driven
snow. Rather, we are declaring his innocence because the prosecution's evidence
failed to show his guilt beyond reasonable doubt. For that is what the basic law
requires. Where the evidence is insufficient to overcome the presumption of
innocence in favor of the accused, then his "acquittal must follow in faithful
obeisance to the fundamental law." 64
WHEREFORE, the decision promulgated on February 18, 1997, by the Regional
Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No.
3105, finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of
violating Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him
the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of
evidence. Appellant is ACQUITTED and ordered RELEASED immediately from
confinement unless held for another lawful cause.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Ynares-Santiago, J., on leave.
SECOND DIVISION
G.R. No. 129211 October 2, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILFREDO RODRIGUEZ Y CULO and LARRY ARTELLERO Y
RICO,1 accused,
LARRY ARTELLERO Y RICO, accused-appellant.
DECISION
QUISUMBING, J.:
On appeal is the decision dated November 13, 1995 of the Regional Trial Court of
Manila, Branch 29,2 in Criminal Case No. 91-99526, convicting appellant and his
co-accused of the crime of murder, sentencing them to suffer the penalty
of reclusion perpetua, ordering them to pay the heirs of the victim P50,000.00 as
indemnity, and to pay the costs.
Appellant Larry Artellero was employed as a cement mixer and helper of co-
accused Wilfredo Rodriguez, a mason in the construction of the upper floors of the
Far East Bank and Trust Company, Blumentritt Branch, Sta. Cruz, Manila. Both
were charged with the crime of robbery with homicide for the killing of the bank
security guard, Ramon Matias y Ibay. The trial court found both guilty of murder.
Both appealed. However, Rodriguez withdrew his appeal for financial reasons.
Although only Artellero is the appellant now, in view of the circumstances
obtaining in this case, we are compelled to review Rodriguezs conviction as well.
The facts of the case are as follows:
On October 11, 1991, early in the morning, at the Far East Bank and Trust
Company branch office in Rizal Avenue cor. Batangas St., Sta. Cruz, Manila, a
messenger discovered the lifeless body of Matias, inside the bank premises. The
body was hogtied with a nylon cord, and bore 32 stab wounds. The chairs and
tables inside the bank were in disarray. The banks emergency exit vault bore
chisel marks. At around 6:00 A.M., SPO3 Mendoza and two other officers of the
Western Police District arrived after receiving a report on the incident. They
interviewed the bank janitor, a Mr. Cawagdan, and the other security guard,
Dionisio Vargas. Then they ordered the transfer of the body of Matias to the
morgue. The police found a bloodstained scissors mate inside a podium located
near the main entrance of the bank. The head guard of the banks security agency
(Leopard) also reported that three .38 cal. revolvers and five 12 gauge shotguns
were missing from the guard rostrum.3
At around 4:00 P.M., SPO3 Jamoralin and four other WPD policemen conducted a
follow-up investigation. They learned from Vargas that there was an on-going
construction on the upper floors of the bank, and that appellant and his co-accused
had access to the bank after office hours. SPO3 Jamoralin asked Vargas to
accompany them to the barracks of the construction workers where they saw
appellant at the ground floor of the construction site. On the third floor, they saw
the co-accused, Rodriguez, packing his personal belongings. When asked why he
was packing, Rodriguez replied that he had "nothing more to do (at the site)."
SPO3 Jamoralin and the other police officers saw a pair of worn-out "maong"
pants on appellants bed, which had reddish stains on the right leg. The police also
saw reddish stains on accuseds shirt. Rodriguez explained that he had a wound on
his neck. However, when the police examined his neck, they found no wound. The
police then arrested Rodriguez and appellant and brought them to the police station
for interrogation. The police took the maong and t-shirt and had them examined by
the Chemistry Section of National Bureau of Investigation (NBI).4
On October 15, 1991, Rodriguez executed a sworn statement confessing that he
and appellant together with one Rading Mendoza, and two other men whose names
he did not know, killed Matias. Rodriguez was assisted by Atty. Procopio Lao III,
of the Public Attorneys Office.
On October 18, 1991, appellant and Rodriguez were charged with the crime of
Robbery with Homicide under the following Information:5
That on or about October 11, 1991, in the City of Manila, Philippines, the said
accused, whose true names, identities and present whereabouts are still unknown
and helping one another, did then and there wilfully, unlawfully and feloniously,
with intent to kill, attack, assault and use personal violence upon the person of
RAMON MATIAS, a security guard on duty at Far East Bank and Trust
Company, by then and there stabbing the latter several times with a bladed
instrument, hitting him on the different parts of the body, thereby inflicting upon
the said RAMON MATIAS mortal stab wounds which were the direct and
immediate cause of his death; that once the said RAMON MATIAS was attacked,
assaulted and/or killed in the manner above-described, the said accused, with
intent of gain, take, rob and carry away three (3) pieces of caliber .38 revolvers
and five (5) pieces of 12 gauge shotguns, all valued not less than P5.00; belonging
to the Far East Bank and Trust Company, to the damage and prejudice of the said
bank in the aforesaid amount of P5.00, Philippine Currency.
Contrary to Law.
Upon arraignment on November 22, 1991, appellant and Rodriguez entered their
respective pleas of not guilty.6
During trial, the prosecution presented the following witnesses: (1) SPO3 Jaime D.
Mendoza, (2) SPO3 Rodolfo A. Jamoralin, Jr., both of the Crimes against Persons
Division of the WPD, (3) Atty. Procopio Lao III of the Public Attorneys Office
(PAO), and (4) Carolyn Y. Custodio, Supervisor of the Chemistry District of the
NBI.
Custodio testified that the reddish stains on Rodriguezs pants and shirt were
positive for type O human blood, which was also the blood type of Rodriguez. 7
The testimony of Dr. Dario L. Gajardo, Chief and Medico-Legal Officer of the
PNP Crime Laboratory, was dispensed with upon admission of the defense of the
authenticity of the Necropsy Report,8 which stated that the cause of death was
"cardio-respiratory arrest due to shock and hemorrhage secondary to multiple stab
wounds in the body."9
The prosecution likewise offered in evidence the photograph of the body of the
victim when it was found, the nylon cord used to tie him, the Sworn Statement of
security guard Dionisio Vargas, the Certification issued by the Leopard Agency as
to the missing firearms, the sworn statement of Rodriguez, the Progress Report of
SPO3 Jamoralin, the Booking Sheet and Arrest Report, the Letter-Request of Chief
Inspector Jose Pring addressed to the Director of the NBI, the NBI Laboratory
Report No. B-91-1613, the maong pants and shirt, and the PNP Medico-Legal
Report.10
After presentation of the prosecutions evidence, appellant filed a Demurrer to the
Evidence11 on the grounds that the prosecution failed to establish the guilt of the
accused beyond reasonable doubt and that testimonies of the prosecution witnesses
were hearsay. Upon the Opposition12 of the public prosecutor, the trial court denied
the demurrer for lack of merit. 13
The evidence for the defense consists of the testimonies of the following
witnesses: (1) Evangelo U. Javellano, Jr., Bank Manager of the FEBTC,
Blumentritt branch, who testified that bank policy prohibits the guards from
allowing persons into the bank after office hours, except for official visitors
coming from higher ranks,14 (2) appellant, and (3) Rodriguez.
On the stand, both Rodriguez and appellant admitted that they were provincemates
from Masbate and co-workers in the construction site. They slept inside the
building on the night before the incident but denied any participation in killing.
They claimed that they learned of the killing only on October 11, 1991, at around
7:00 A.M., when they saw many people milling around the area. Rodriguez
claimed that on the night of October 11, 1991, he was mauled by policemen to
confess to the crime. Appellant, on his part, testified that the policemen merely
placed him outside the room where Rodriguez was being interrogated, and that the
police did not take any statement from him. Appellant also denied owning the
maong pants which the police said were taken from his bed. 15
After due trial, the trial court rendered a decision16 finding appellant and
Rodriguez guilty of murder, instead of robbery with homicide, disposing thus:
WHEREFORE, the accused Larry Artellero Y Rico and Wilfredo Rodriguez Y
Culo are hereby found guilty of the crime of Murder as defined and penalized
under Art. 248 of the Revised Penal Code and each of them are (sic) hereby
sentenced to suffer the penalty of Reclusion Perpetua and pay civil indemnity of
50,000.00 by each of them to the heirs of the victim Ramon Matias Y Ibay and to
pay the costs.
The charge of Robbery with Homicide is dismissed it being not the proper charge.
The accused are acquitted from the charge of Robbery for insufficiency of
evidence.
SO ORDERED.
Only appellant pursued his appeal. In his brief,17 he contends that the trial court
erred in:
I. ... GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSION
OF CO-ACCUSED, WILFREDO RODRIGUEZ, ALLEGED CO-
CONSPIRATOR, IN PROVING CONSPIRACY AS
CIRCUMSTANTIAL EVIDENCE TO SHOW PROBABILITY OF
PARTICIPATION OF LARRY ARTILLERO AS CO-CONSPIRATOR.
II. ... HOLDING THAT THE MAONG PANTS STAINED WITH
HUMAN BLOOD TYPE "O" IS THAT OF ACCUSED-APPELLANT,
AND AS PART OF CIRCUMSTANTIAL EVIDENCE OF GUILT OR
PARTICIPATION IN THE COMMISSION OF THE CRIME.
III. ... HOLDING THAT THE FACT OF WORKING AND SLEEPING
TOGETHER WITH CO-ACCUSED FOR SIX (6) MONTHS, AS PART
OF CIRCUMSTANTIAL EVIDENCE TO FINGER POINT GUILT TO
ACCUSED-APPELLANT.
IV. ... RENDERING DECISION MORE SERIOUS THAN CHARGED
IN THE INFORMATION.
Instead of filing an Appellees Brief, the Office of the Solicitor General filed a
Manifestation and Motion in Lieu of Appellees Brief18 contending that:
(1) THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE
EXTRAJUDICIAL CONFESSION OF ACCUSED WILFREDO
RODRIGUEZ AGAINST HIS CO-ACCUSED, APPELLANT LARRY
ARTELLERO.
(2) ASSUMING FOR THE SAKE OF ARGUMENT THAT ACCUSED
RODRIGUEZS EXTRAJUDICIAL CONFESSION IS ADMISSIBLE
AGAINST APPELLANT ARTELLERO, THE TRIAL COURT ERRED
IN FINDING APPELLANT GUILTY OF THE CRIME OF MURDER.
The OSG points out that the prosecution failed to prove the existence of a
conspiracy between appellant and Rodriguez independent of the extrajudicial
confession of the latter. The fact that Rodriguez and appellant have been working
in the construction site for six months prior to the incident is insufficient to make a
finding of conspiracy. Further, the fact that type O blood stains were found on
appellants maong pants and Rodriguezs t-shirt has no probative value since
appellant denied owning the maong pants, and more importantly, the victims
blood type was not examined, hence there was no point of comparison. Lastly, the
OSG contends that the trial court erred in convicting appellant of murder
considering that the Information failed to allege the circumstances qualifying the
killing to murder.
The resolution of the issue regarding the guilt of appellant, in our view, hinges on
whether the extrajudicial confession of accused Rodriguez is admissible not only
against him but also against appellant. We find that Rodriguezs confession is
constitutionally flawed so that it could not be used as evidence against them at all.
The four fundamental requisites for the admissibility of a confession are (1) the
confession must be voluntary; (2) the confession must be made with the assistance
of competent and independent counsel; (3) the confession must be express; and (4)
the confession must be in writing.19
We find the second requisite lacking. Prosecution witness SPO3 Jamoralin
testified that the accused and appellant were arrested and brought to the police
station at around 5:00 P.M. of October 11, 1991. 20 The records show that the
extrajudicial confession of Rodriguez was taken down by Pat. David D. Tuazon at
2:00 P.M. of October 15, 1991.21Atty. Lao confirmed on the stand that the police
investigators called him at around 2:00 P.M. of October 15, 1991, and that he
conferred with the accused for about 10 minutes prior to the execution of the
extrajudicial confession.22Evidently, Rodriguez and appellant were detained for
four days, but Atty. Lao of the PAO was called only on the fourth day of detention
when accused was about to put his confession in writing. Under the factual milieu,
the moment accused and appellant were arrested and brought to the police station,
they were already under custodial investigation.
In the case of People v. Bolanos,23 we held that an accused who is on board the
police vehicle on the way to the police station is already under custodial
investigation, and should therefore be accorded his rights under the Constitution.
In this case, the teaching of Bolanos clearly went unheeded.
The rights of persons under custodial investigation is enshrined in Article III,
Section 12 of the 1987 Constitution which provides:
Sec. 12 (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other means
which vitiates the free will shall be used against him. Secret detention
 places, solitary, incommunicado, or other similar forms of detention are
prohibited.
(3) Any confession or admission obtained in violation of this or section
17 hereof (right against self-incrimination) shall be inadmissible in
evidence against him.
(4) The law shall provide for penal and civil sanctions for violation of this
section as well as compensation for the rehabilitation of victims of
tortures or similar practices, and their families.
Custodial investigation refers to the critical pre-trial stage when the investigation is
no longer a general inquiry into an unsolved crime but has begun to focus on a
particular person as a suspect.24 When Rodriguez and appellant were arrested by
the police in the afternoon of October 11, 1991, they were already the suspects in
the slaying of the security guard,Ramon Matias, and should have been afforded the
rights guaranteed by Article III, Section 12 of the 1987 Constitution, particularly
the right to counsel. The records do not show that Rodriguez and appellant, at the
time of their arrest in the afternoon of October 11, 1991, were informed of the
well-known Miranda rights. Worse, they were not provided with competent and
independent counsel during the custodial investigation prior to the execution of the
extrajudicial confession.
In People v. De la Cruz, 279 SCRA 245 (1997), we declared as inadmissible the
extrajudicial confession of accused where the interrogation started at 9:00 A.M.
and his lawyer arrived only at 11:00 A.M.. Jurisprudence is clear that an accused
under custodial investigation must continuously have a counsel assisting him from
the very start thereof.25In this case, Rodriguez and appellant were in the hands of
the police for about four days without the assistance of counsel. In People v.
Compil,26 we held that:
The operative act, it has been stressed, is when the police investigation is no longer
a general inquiry into an unsolved crime but has begun to focus on a particular
suspect who has been taken into custody by the police to carry out a process of
interrogation that lends itself to eliciting incriminatory statements, and not the
signing by the suspect of his supposed extrajudicial confession. Thus in People v.
de Jesus (213 SCRA 345 [1992]) we said that admissions obtained during
custodial investigation without the benefit of counsel although later reduced to
writing and signed in the presence of counsel are still flawed under the
Constitution.
So flagrant a violation of the constitutional right to counsel of the accused cannot
be countenanced. In People v. Olivarez, Jr.,27 we explained that:
The purpose of providing counsel to a person under custodial investigation is to
curb the uncivilized practice of extracting confession even by the slightest
coercion as would lead the accused to admit something false. What is sought to be
avoided is the "evil of extorting from the very mouth of the person undergoing
interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him." These constitutional guarantees have been
made available to protect him from the inherently coercive psychological, if not
physical, atmosphere of such investigation.
Moreover, so stringent is this requirement that even if the confession of an accused
speaks the truth, if it was made without the assistance of counsel, it is inadmissible
in evidence regardless of the absence of coercion, or even if it had been voluntarily
given.28
Since the extrajudicial confession executed by Rodriguez was given in violation of
the safeguards in Art. III, Sec. 12 of the 1987 Constitution, we hold that
Rodriguezs confession is totally inadmissible, and it was error for the trial court to
use it in convicting Rodriguez and appellant.
Insofar as Rodriguez is concerned, the trial court relied on his extrajudicial
confession in convicting him. Aside from said extrajudicial confession, however,
there is a dearth of evidence on record, whether direct or circumstantial, linking
Rodriguez to the commission of the crime.
As to appellant, the trial court convicted him on the basis of two pieces of
circumstantial evidence which show conspiracy: (1) the extrajudicial confession of
accused implicating him as one of the perpetrators and (2) the fact that the maong
pants allegedly belonging to appellant was found positive of type O blood. The
former being inadmissible and the latter being of no probative value since the
blood type of appellant and the victim were not taken for purposes of comparison,
there remains nothing to support appellants conviction.
As pointed out by the Office of the Solicitor General, even granting arguendo that
the extrajudicial confession of accused was admissible, Section 33 of Rule 130 of
the Rules of Court provides that such confession is only admissible against the
confessant. In order to be admissible against his co-accused, Section 30 of Rule
130 of the Rules of Court require there must be independent evidence aside from
the extrajudicial confession to prove conspiracy.1wphi1 In this case, however, no
other piece of evidence was presented to prove the alleged conspiracy.
Although it is only appellant who persisted with the present appeal, the well-
established rule is that an appeal in a criminal proceeding throws the whole case
open for review of all its aspects, including those not raised by the parties. 29 The
records show that Rodriguez had withdrawn his appeal due to financial
reasons.30 However, Section 11 (a) of Rule 122 of the Rules of Court provides that
"[a]n appeal taken by one or more [of] several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellant court is favorable
and applicable to the latter." As we have elucidated, the evidence against and the
conviction of both appellant and Rodriguez are inextricably linked. Hence,
appellants acquittal, which is favorable and applicable to Rodriguez, should
benefit the latter.
WHEREFORE, the decision of the trial court convicting appellant LARRY
ARTELLERO y RICO and co-accused WILFREDO RODRIGUEZ y CULO is
hereby REVERSED. Appellant and Rodriguez are ACQUITTED of the crime of
murder and ordered immediately released from prison, unless held for another
lawful cause. The Director of Prisons is directed to inform this Court of his
compliance, within ten (10) days from receipt of this Decision. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127755 April 14, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSELITO DEL ROSARIO y PASCUAL, accused-appellant.
BELLOSILLO, J
ON AUTOMATIC REVIEW is the decision of the court a quo finding accused
Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with
Homicide and sentencing him to death, and to pay the heirs of victim Virginia
Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary
damages.1
Joselito del Rosario y Pascual, Ernesto Marquez alias "Jun," Virgilio
Santos alias "Boy Santos" and John Doe alias"Dodong" were charged with the
special complex crime of Robbery with Homicide for having robbed Virginia
Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry and on
the occasion thereof shot and killed her.2
While accused Joselito del Rosario pleaded not guilty, 3 Virgilio "Boy" Santos and
John Doe alias "Dodong" remained at large. Ernesto "Jun" Marquez was killed in
a police encounter. Only Joselito del Rosario was tried.
These facts were established by the prosecution from the eyewitness account of
tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in
the evening, Alonzo stopped his tricycle by the side of Nita's Drugstore, General
Luna St., Cabanatuan City, when three women flagged him. Parked at a distance of
about one and a-half (1 1/2) meters in front of him was a tricycle driven by
accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman
grappling for possession of a bag. After taking hold of the bag one of the two men
armed with a gun started chasing a man who was trying to help the woman, while
the other snatcher kicked the woman sending her to the ground. Soon after, the
armed man returned and while the woman was still on the ground he shot her on
the head. The bag taken by the man was brought to the tricycle of accused del
Rosario where someone inside received the bag. The armed man then sat behind
the driver while his companion entered the sidecar. When the tricycle sped away
Alonzo gave chase and was able to get the plate number of the tricycle. He also
recognized the driver, after which he went to the nearest police headquarters and
reported the incident.4
Accused Joselito del Rosario gave his own version of the incident: At around 5:30
in the afternoon he was hired for P120.005 by a certain "Boy" Santos,6 his co-
accused. Their original agreement was that he would drive him to a cockpit at the
Bias Edward Coliseum.7 However despite their earlier arrangement Boy Santos
directed him to proceed to the market place to fetch "Jun" Marquez and "Dodong"
Bisaya. He (del Rosario) acceded.8 Marquez and Bisaya boarded in front of the
parking lot of Merced Drugstore at the public market. 9 Subsequently, he was asked
to proceed and stop at the corner of Burgos and General Luna Sts. where Bisaya
alighted on the pretext of buying a cigarette. The latter then accosted the victim
Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez
alighted from the tricycle to help "Dodong" Bisaya. 10 Accused del Rosario tried to
leave and seek help but "Boy Santos" who stayed inside the tricycle prevented him
from leaving and threatened in fact to shoot him.
Meanwhile, "Dodong" Bisaya succeeded in taking the victim's bag, but before
boarding the tricycle "Jun" Marquez mercilessly shot the victim on the head while
she was lying prone on the ground. After the shooting, "Dodong" Bisaya boarded
the sidecar of the tricycle while "Jun" Marquez rode behind del Rosario and
ordered him to start the engine and drive towards Dicarma. While inside his
tricycle, del Rosario overheard his passengers saying that they would throw the
bag at Zulueta St. where there were cogon grasses. 11 Upon arriving at Dicarma,
the three (3) men alighted and warned del Rosario not to inform the police
authorities about the incident otherwise he and his family would be harmed. 12 Del
Rosario then went home. 13 Because of the threat, however, he did not report the
matter to the owner of the tricycle nor to the barangay captain and the police. 14
As a rule, it is natural for people to be seized by fear when threatened with
weapons, even those less powerful than a gun, such as knives and clubs. People
will normally, usually and probably do what an armed man asks them to do,
nothing more, nothing less. In the instant case, del Rosario was threatened with a
gun. He could not therefore be expected to flee nor risk his life to help a stranger.
A person under the same circumstances would be more concerned with his
personal welfare and security rather than the safety of a person whom he only saw
for the first time that day. 19

As earlier stated, the court a quo found accused Joselito del Rosario guilty as
charged and sentenced him to death. He now contends in this automatic review
that the court a quo erred in: (1) Not finding the presence of threat and irresistible
force employed upon him by his co-accused Virgilio "Boy" Santos, Ernesto "Jun"
Marquez and "Dodong" Bisaya; (2) Not considering his defense that he was not
part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not
considering the violations on his constitutional rights as an accused; and, (4) Not
considering that there was no lawful warrantless arrest within the meaning of Sec.
5, Rule 113, of the Rules of Court. 15
Corollary with the defense of del Rosario, we hold that the trial court erred when it
said that it was "Boy" Santos who left the tricycle to chase the companion of the
victim and then shot the victim on the head, instantly killing her. 20 A careful and
meticulous scrutiny of the transcripts and records of the testimonies of witness
Alonzo and del Rosario himself, reveals that it was "Jun" Marquez who ran after
the victim's helper and fired at the victim. Witness Alonzo testified on direct
examination
Q: What was that unusual incident that
transpired in that place at that time?

The conviction of del Rosario must be set aside. His claim for exemption from A: I saw two men and a lady grappling for the
criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the possession of a bag,
compulsion of an irresistible force must be sustained. He was then unarmed and sir . . . .
unable to protect himself when he was prevented at gunpoint by his co-accused
from leaving the crime scene during the perpetration of the robbery and killing,
Q: What happened after the bag of the lady
and was only forced to help them escape after the commission of the crime. 16
was grabbed by the two men?

But the trial court ruled that his fear was merely speculative, fanciful and remote, A: One helper of the lady was chased by the
hence, could not be considered uncontrollable; and that a gun pointed at him did other man, sir.
not constitute irresistible force because it fell short of the test required by law and
jurisprudence. 17
Q: Who was that man who chased the helper
of the lady?
We disagree. A person who acts under the compulsion of an irresistible force, like
one who acts under the impulse of an uncontrollable fear of equal or greater injury,
is exempt from criminal liability because he does not act with freedom. Actus me A: He was the one holding the gun, sir . . . .
invito factus non est meus actus. An act done by me against my will is not my act.
The force contemplated must be so formidable as to reduce the actor to a mere Q: What happened when the bag of the woman
instrument who acts not only without will but against his will. The duress, force, was already taken by the two men who
fear or intimidation must be present, imminent and impending, and of such nature grappled the same from her?
as to induce a well-grounded apprehension of death or serious bodily harm if the
act be done. A threat of future injury is not enough. The compulsion must be of A: The man who chased the helper of the lady
such a character as to leave no opportunity for the accused for escape or self- returned to the scene while the other man was
defense in equal combat. 18 then kicking the lady who in turn fell to the
ground, sir.
 Q: What happened to the lady who fell to the Q: Will you please tell us where in particular
ground? did you see the accused who was then holding
the gun fired at the victim?
A: The man who chased the helper of the lady
returned and then shot the woman who was A: At the time one man was kicking the victim
then lying on the ground, sir . . . . it was then his other companion holding a gun
chased the helper of the deceased going
Q: What about the bag, what happened to the towards Burgos Avenue, sir.
bag?
Q: What happen (sic) afterwards?
A: The bag was taken to a motorcycle, sir.
A: The man with the gun returned and then
Q: Will you please state before the the Court while the victim was lying down in this spot
what you noticed from the tricycle which was the man holding a gun shot the victim, sir. 22
at a distance of about one and a half meter?
On cross-examination, the same witness further clarified
A: There was a passenger inside the tricycle,
sir . . . . Q: So, you saw the two other accused returned
back to the tricycle?
Q: What happened to that woman that was
shot by the man who grappled for the A: Yes, sir.
possession of the bag?
Q: And one of their companion was already
A: She was no longer moving and lying down, inside the tricycle?
sir.
xxx xxx xxx
Q: After the shooting by one of the two men of
the woman what else happened? Court: There was somebody inside the tricycle
where the handbag was given.
A: They went away, sir . . . .
A: Yes, sir.
Q: Will you please tell the Court in what
portion of the tricycle did these men sit in the Q: And the one who sat at the back of the
tricycle? tricycle driver was the person with the gun?

A: The man who was holding the gun sat A: Yes, sir. 23
himself behind the driver while the other
man entered the sidecar, sir.21 On the other hand, accused Del Rosario declared during the direct examination
that
On the continuation of his direct examination, after an ocular inspection on the
crime scene conducted by the trial court, witness Alonzo categorically
stated
Q: . . . . On the evening of May 13, 1996 you
were the driver of the tricycle as testified to by
Eduardo Nalagon?
A: Yes, sir.
Q: Now, you also heard that there was a shoot
out near the Cathedral and the Nita's Drugstore
at Gen. Tinio St.?
A: Yes, sir.
xxx xxx xxx
Court: At that time you were seated at the
tricycle, which tricycle was used by the
assailants?
A: Yes, sir.
Q: Then what did you do?
A: I tried to escape, sir, but I was stopped by
them.
Q: When you said "they" to whom are you
referring?
A: Boy Santos and Jun Marquez, sir.
Q: And at that time where was Boy Santos?
A: He was inside the tricycle, sir.
Q: And what about Jun Marquez?
A: He alighted from the tricycle and helped
him grabbed (sic) the bag of the victim.
Q: And was the bag grabbed and by whom?
A: Yes, sir, by Dodong Visaya was able to
grab the bag.
Q: And after that what happened?
A: Both of them rode inside my tricycle, sir.
Court: Did you not see any shooting?
A: There was, sir.
Q: Who was shot?
A: Jun Marquez shot the woman, sir . . . .
Q: When the bag of the woman was being
grabbed you know that what was transpiring
was wrong and illegal?
A: Yes, sir.
Q: But you did not try to leave?
A: I tried to leave but Boy Santos who was
inside my tricycle prevented me.
Q: During that time before you leave (sic) how
many firearms did you see?
A: Two firearms, sir, one in the possession of
Boy (Jun?) Marquez and one in the possession
of Boy Santos . . . .
Q: And at the time when the shooting took
place where was Boy Santos?
A: He was still inside my tricycle, sir.
Q: And during the shooting when Boy Santos
was inside the tricycle and when you tried to
escape that was the time when Boy Santos
 threatened you if you will escape something Q: Was the gun being carried by Boy Santos,
will happen to your family? is the one that is used in shooting the old
woman?
A: Yes, sir.
A: No, sir . . . .
Q: After the shooting who first boarded the
tricycle, Boy (Jun?) Marquez or Dodong Q: Where was Boy Santos when Dodong
Visaya? Bisaya and Jun Marquez were grappling for
the possession of the handbag?
A: Dodong Visaya, sir.
A: He was then inside the tricycle, sir . . . . 25
Q: And immediately thereafter Jun Marquez
boarded your tricycle sitting at your back? Q: Mr. Witness, you testified that the reason
why you just cannot leave the area where the
A: Yes, sir. 24 incident occurred is because a gun was pointed
to you by Boy Santos and he was telling you
On cross-examination, accused further stated that you should not do anything against their
will, they will kill you and your family will be
killed also, is that correct?
Q: After stopping in that place for one minute
what else happened?
A: Yes, sir.
A: I saw Dodong Bisaya grabbing the bag of
Q: Now, is it not a fact that at the time you
the woman, sir.
stop (sic) your tricycle which was loaded by
your other three co-accused in this case, all of
Q: How about your two companions, what are them alighted and that Boy Santos ran after a
(sic) they doing while Dodong Bisaya was helper of the victim going towards the public
grabbing the bag of the woman? market along Burgos Street?

A: Jun Marquez was helping Dodong Bisaya, A: He did not alight from the tricycle, sir.
sir.
Court: Are you quite sure of that?
Q: What happened after Jun Marquez helped
Dodong Bisaya?
A: Yes, sir. 26
A: I heard a gunshot and I saw the woman
Del Rosario maintains that "Boy" Santos never left the tricycle and that the latter
lying down . . . .
pointed his gun at him and threatened to shoot if he tried to escape. He also asserts
that it was "Jun" Marquez who shot the victim and sat behind him in the tricycle.
Q: You could have ran away to seek the help
of the police or any private persons?
From the narration of witness Alonzo, these events stood out: that after the bag of
the victim was grabbed, her male helper was chased by a man holding a gun; that
A: I was not able to ask for help because Boy the gunwielder returned and shot the victim and then sat behind the driver of the
Santos pointed his gun to me, sir. tricycle; and, that the bag was given to a person who was inside the tricycle.
Taking the testimony of witness Alonzo in juxtaposition with the testimony of del
Rosario, it can be deduced that "Jun" Marquez was the person witness Alonzo was
referring to when he mentioned that a helper of the lady was chased "by the other
man," and that this "other man" could not be "Boy" Santos who stayed inside the
tricycle and to whom the bag was handed over. This conclusion gives credence to
the claim of del Rosario that "Boy" Santos never left the tricycle, and to his
allegation that "Boy" Santos stayed inside the tricycle precisely to threaten him
with violence and to prevent him from fleeing; that there could have been no other
plausible reason for "Boy" Santos to stay in the tricycle if the accused was indeed
a conspirator; that "Boy" Santos could have just left the tricycle and helped in the
commission of the crime, particularly when he saw the victim grappling with
"Dodong" Bisaya and resisting the attempts to grab her bag; and, that "Boy"
Santos opted to remain inside the tricycle to fulfill his preordained role of
threatening del Rosario and insuring that he would not escape and leave them
behind. 27
Even if the tricycle of del Rosario was only parked one meter and a half (1-1/2) in
front of the tricycle of witness Alonzo, the latter still could not have totally seen
and was not privy to events that were transpiring inside the vehicle, i.e., the
pointing of the gun by "Boy" Santos at del Rosario simultaneously with the
robbing and shooting of the victim. From the exhibits submitted by the prosecution
panel the back of the sidecar of del Rosario tricycle was not transparent. 28
There is no doubt that the fear entertained by del Rosario because of the gun
directly pointed at him was real and imminent. Such fear rendered him immobile
and subject to the will of Boy Santos, making him for the moment an automaton
without a will of his own. In other words, in effect, he could not be any more than
a mere instrument acting involuntarily and against his will. He is therefore exempt
from criminal liability since by reason of fear of bodily harm he was compelled
against his will to transport his co-accused away from the crime scene.
On the issue of conspiracy, the trial court anchored del Rosario's conviction on his
participation in the orchestrated acts of "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya. According to the trial court, del Rosario facilitated the escape of
the other malefactors from the crime scene and conspiracy between accused and
his passengers was evident because "while the grappling of the bag, the chasing of
the helper of the victim and the shooting that led to the death of Virginia Bernas
were happening, accused Joselito del Rosario was riding on his tricycle and the
engine of the motor was running;" 29 that the "accused did not deny that the
tricycle driven by him and under his control was hired and used by his co-accused
in the commission of the crime; neither did he deny his failure to report to the
authorities the incident of robbery, killing and fleeing away from the scene of the
crime." 30
We disagree with the trial court. A conspiracy in the statutory language exists
when two or more concerning the commission of a felony and decide to commit it.
The objective of the conspirators is to perform an act or omission punishable by
law. That must be their intent. There is need for "concurrence of wills" or "unity of
action and purpose" or for "common and joint purpose and design." Its
manifestation could be shown by "united and concerted action." 31
Admittedly, direct proof is not essential to establish conspiracy. Since by its nature
conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence.
Consequently, the presence of the concurrence of minds which is involved in
conspiracy may be inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some complete whole. If
it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. That would be termed an implied
conspiracy. 32 Nevertheless, mere knowledge, acquiescence or approval of the act,
without the cooperation or agreement to cooperate, is not enough to constitute one
a party to a conspiracy, but that there must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose.
Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence. In fact, the same degree of proof necessary to establish the crime is
required to support a finding of the presence of a criminal conspiracy, which is,
proof beyond reasonable doubt. 33
In the instant case, while del Rosario admits that he was at the locus criminis as he
was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt
against him by asserting that he had no inkling of the malevolent design of his co-
accused to rob and kill since he was not given any briefing thereof. He was merely
hired by Boy Santos to drive to an agreed destination and he was prevented at
gunpoint from leaving the scene of the crime since he was ordered to help them
escape.
In this case, the trial court stated that "there is no evidence that the accused came
to an agreement concerning the commission of the felony and decided to commit
the same." 34 Therefore, in order to convict the accused, the presence of an implied
conspiracy is required to be proved beyond reasonable doubt. However, the fact
that del Rosario was with the other accused when the crime was committed is
insufficient proof to show cabal. Mere companionship does not establish
conspiracy. 35 The only incriminating evidence against del Rosario is that he was
at the scene of the crime but he has amply explained the reason for his presence
and the same has not been successfully refuted by the prosecution. As stated
earlier, he feared for his safety and security because of the threat made by his co-
accused that he would be killed should he shout for help. No complicity can be
deduced where there is absolutely no showing that the accused directly
participated in the overt act of robbing and shooting although he was with the
persons who robbed and killed the victim. 36
That del Rosario did not disclose what he knew about the incident to the
authorities, to his employer or to the barangay captain does not affect his
credibility. The natural hesitance of most people to get involved in a criminal case
is of judicial notice. 37 It must be recalled that del Rosario was merely a tricycle
driver with a family to look after. Given his quite limited means, del Rosario
understandably did not want to get involved in the case so he chose to keep his
silence. Besides, he was threatened with physical harm should he squeal.
Del Rosario further contends that there was violation of his right to remain silent,
right to have competent and independent counsel preferably of his own choice, and
right to be informed of these rights as enshrined and guaranteed in the Bill of
Rights. 38 As testified to by SPO4 Geronimo de Leon, the prosecution witness who
was the team leader of the policemen who investigated the 13 May incident,
during his cross-examination
Upon finding the name of the owner of the tricycle, they
proceeded to Bakod Bayan in the house of the barangay captain
where the owner of the tricycle was summoned and who in turn
revealed the driver's name and was invited for interview. The
driver was accused Joselito del Rosario who volunteered to
name his passengers on May 13, 1996. On the way to the police
station, accused informed them of the bag and lunch kit's
location and the place where the hold-uppers may be found and
they reported these findings to their officers, Capt. Biag and
Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma
composed of 15 armed men where a shoot-out transpired that
lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief
encounter, they went inside the house where they found
Marquez dead holding a magazine and a gun. While all of these
were happening, accused del Rosario was at the back of the
school, after which they went back to the police station. The
investigator took the statement of the accused on May 14, 1996,
and was only subscribed on May 22, 1996. All the while, he was
detained in the police station as ordered by the Fiscal. His
statements were only signed on May 16, 1996. He also executed
a waiver of his detention. His Sinumpaang Salaysay was done
with the assistance of Ex-Judge Talavera. 39
A further perusal of the transcript reveals that during the encounter at
Brgy. Dicarma, del Rosario was handcuffed by the police because
allegedly they had already gathered enough evidence against him and
they were afraid that he might attempt to escape. 40
Custodial investigation is the stage where the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular
suspect taken into custody by the police who carry out a process of interrogation
that lends itself to elicit incriminating statements. It is well-settled that it
encompasses any question initiated by law enforces after a person has been taken
into custody or otherwise deprive of his freedom of action in any significant
way. 41 This concept of custodial investigation has been broadened by RA
7438 42 to include "the practice of issuing an "invitation" to a person who is
investigated in connection with an offense he is suspected to have committed."
Section 2 of the same Act further provides that
. . . . Any public officer or employee, or anyone acting under his
order or in his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter,
in a language known and understood by him, of his right to
remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under
custodial investigation. If such person cannot afford the services
of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.
From the foregoing, it is clear that del Rosario was deprived of his rights during
custodial investigation. From the time he was "invited" for questioning at the
house of the baranggay captain, he was already under effective custodial
investigation, but he was not apprised nor made aware thereof by the investigating
officers. The police already knew the name of the tricycle driver and the latter was
already a suspect in the robbing and senseless slaying of Virginia Bernas. Since
the prosecution failed to establish that del Rosario had waived his right to remain
silent, his verbal admissions on his participation in the crime even before his actual
arrest were inadmissible against him, as the same transgressed the safeguards
provided by law and the Bill of Rights.
Del Rosario also avers that his arrest was unlawful since there was no warrant
therefor. Section 5, Rule 113 of the Rules of provides: 43
Sec. 5. Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person: (a)
When, in his presence, the person to be arrested has committed,
 is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact been committed and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and, (c) When the person to be
arrested is a prisoner who has escaped from penal establishment
or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being
transferred from one confinement to another.
It must be recalled that del Rosario was arrested by SPO4 De Leon during the
police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996.
In People vs. Sucro 44 we held that when a police officer sees the offense, although
at a distance, or hears the disturbances created thereby, and proceeds at once to the
scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par.
(a), Rule 113, since the offense is deemed committed in his presence or within his
view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught
in flagrante delicto or caught immediately after the consummation of the act. The
arrest of del Rosario is obviously outside the purview of the aforequoted rule since
he was arrested on the day following the commission of the robbery with
homicide.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent
requirements before a warrantless arrest can be effected: (1) an offense has just
been committed; and, (2) the person making the arrest has personal knowledge of
facts indicating that the person to be arrested had committed it. Hence, there must
be a large measure of immediacy between the time the offense was committed and
the time of the arrest, and if there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured. Aside
from the sense of immediacy, it is also mandatory that the person making the arrest
must have personal knowledge of certain facts indicating that the person to be
taken into custody has committed the crime. 45 Again, the arrest of del Rosario
does not comply with these requirements since, as earlier explained, the arrest
came a day after the consummation of the crime and not immediately thereafter.
As such, the crime had not been "just committed" at the time the accused was
arrested. Likewise, the arresting officers had no personal knowledge of facts
indicating that the person to be arrested had committed the offense since they were
not present and were not actual eyewitnesses to the crime, and they became aware
of his identity as the driver of the getaway tricycle only during the custodial
investigation.
However, the conspicuous illegality of del Rosario's arrest cannot affect the
jurisdiction of the court a quo because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any objection thereto is waived
when the person arrested submits to arraignment without any objection, as in this
case. 46
A transgression of the law has occurred. Unfortunately, an innocent person lost her
life and property in the process. Someone therefore must be held accountable, but
it will not be accused Joselito del Rosario; we must acquit him. Like victim
Virginia Bernas, he too was a hapless victim who was forcibly used by other
persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense
of "irresistible force" has been substantiated by clear and convincing evidence. On
the other hand, conspiracy between him and his co-accused was not proved beyond
a whimper of a doubt by the prosecution, thus clearing del Rosario of any
complicity in the crime charged.
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City
convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with
Homicide and sentencing him to death, is REVISED and SET ASIDE, and the
accused is ACQUITTED of the crime charged. His immediate RELEASE from
confinement is ordered unless held for some other lawful cause. In this regard, the
Director of Prisons is directed to report to the Court his compliance herewith
within five (5) days from receipt hereof.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ.,
concur.
SECOND DIVISION
G.R. No. 122142 May 17, 2000
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JIMMY OBRERO y CORLA, accused-appellant.
MENDOZA, J.:
This is an appeal from the decision 1 of the Regional Trial Court, Branch 12,
Manila, finding accused-appellant Jimmy Obrero y Corla guilty beyond reasonable
doubt of the crime of robbery with homicide and sentencing him to suffer the
penalty of reclusion perpetua with all the accessory penalties, and to indemnify the
heirs of the victims Nena Berjuega and Remedios Hitta in the amount of
P50,000.00 each and to pay the sum of P4,000.00 representing the amount of
money stolen.
The information alleged
That on or about August 11, 1989, in the City of Manila,
Philippines, the said accused conspiring and confederating with
one, whose true name, identity and present whereabouts are still
unknown and mutually helping one another, did then and there
willfully, unlawfully and feloniously with intent of gain and by
means of force, violence and intimidation, to wit: the said
accused take, rob and carry away the amount of P4,000.00 cash
belonging to Antonio Cabrera against his will, to the damage and
prejudice of said owner in the aforesaid amount of P4,000.00
Philippine Currency; that on the occasion thereof and by reason
of the aforesaid robbery, the said accused willfully, unlawfully
and feloniously, with intent to kill, attacked, assaulted and used
personal violence upon the person of NENA BERJUEGA and
REMEDIOS HITTA, by stabbing them to death, thereby
inflicting upon the said victims mortal stab wounds which were
the direct and immediate cause of their death thereafter.
Contrary to law.
Only accused-appellant had been apprehended. His co-accused Ronnie Liwanag
has been at large. When arraigned, accused-appellant pleaded not guilty,
whereupon, trial ensued.
The prosecution presented three witnesses, namely, Pat. Benjamin Ines, Dr.
Marcial G. Cenido, and Atty. Bienvenido De los Reyes. Pat. Ines of the Western
Police District investigated the robbery with homicide. The gist of his testimony is
to the following effect:
Accused-appellant was a delivery boy employed by Angie Cabosas whose
business was selling chickens to customers. Cabosas's business was located in
Blumentritt Street, Sta. Cruz, Manila.
In the morning of August 11, 1989, accused-appellant was asked to deliver dressed
chickens to Emma Cabrera, a regular customer at Room 4-D Gatlin Building, 1344
C.M. Recto Avenue in Sta. Cruz, Manila. At about 10:20 a.m., accused-appellant
came back and turned over to his employer the amount of P2,000.00. Pat. Ines
testified that after receiving report of the killing, he and Pfc. Ricardo Sibal went to
see Angie Cabosas from which they learned that the latter has received a call from
Emma Cabrera informing Angie that her house had been robbed and her two maids
killed. They were told that accused-appellant had gone to Pangasinan allegedly to
attend the burial of his grandfather. Pat. Ines said he and P/Lt. Villamor Valdez,
Pfc. Sibal, Pfc. Edmundo Cabal and Pat. Renato Gutierrez went to Rosales,
Pangasinan but failed to find accused-appellant. They were told by the sister of
accused-appellant, Merly Asuncion, that accused-appellant had gone to La Union.
According to Pat. Ines, accused-appellant confided to his sister that he had
allegedly done something wrong in Manila.
Pat. Ines identified two sworn statements, both executed on August 11, 1989, one
of which, he said, had been executed by Helen N. Moral, a househelp of Emma
Cabrera, and the other by Angie C. De los Reyes. In her statement marked Exhibit
I, Moral said that upon arriving in the house at about 12:20 p.m. that day, she and
her employer's nephew, Carlos Emerson, found the bodies of the victims sprawled
on the floor. She told Pat. Ines that accused-appellant used to deliver pork and
dressed chicken to their place.
On the other hand, in her sworn statement given on August 14, 1989 and marked
as Exhibit L, Anita C. De los Reyes stated that on August 11, 1989, she had seen
accused-appellant and Ronnie Liwanag, their hands covered with blood, coming
out of the Gatlin Building on C.M. Recto Avenue, Sta. Cruz, Manila. 2
Pat. Ines testified that on March 3, 1990, he and his group received information
from Pat. Alfredo Que of the Urdaneta Police Station that accused-appellant was in
Cataban, Urdaneta, Pangasinan. Accordingly, they went to the place indicated and
the next day, March 4, 1990, they were able to apprehend accused-appellant whom
they brought to Manila. Pat. Ines said accused-appellant was positively identified
by Anita De los Reyes as one of those whom she saw running down the stairs of
the Gatlin Building on C.M. Recto Avenue, Sta. Cruz, Manila with blood in his
hands. 3
Pat. Ines testified that on that same day, March 4, 1990, accused-appellant gave a
confession (Exh. O) in writing with the assistance of counsel, Atty. Bienvenido De
los Reyes, in which he admitted participation in the killing of Nena Berjuega and
Remedios Hitta. Pat. Ines himself executed an affidavit (Exh. P) stating the
circumstances of accused-appellant's arrest. He said accused-appellant refused to
sign the booking and information sheet. 4
Accused-appellant's extrajudicial confession was presented in evidence as Exhibit
O. 5 In it, accused-appellant said he started working for Angie Cabosas in the
latter's business on Blumentritt Street, Manila three or four months before the
incident. Cabosas and accused-appellant's sister Merly Asuncion, had been
neighbors in Rosales, Pangasinan. Accused-appellant's work was to deliver
dressed chicken. Emma Cabrera was a regular customer to whom he made
deliveries in the morning. On August 10, 1989, his fellow employee, Ronnie
Liwanag, proposed that they rob Emma in order to be able to go to La Union to
visit his family. On August 11, 1989, after learning that only two helpers were then
at the residence of Emma Cabrera, accused-appellant and Ronnie decided to pull
the heist. Ronnie covered the mouth of one Nena Berjuega to prevent her from
shouting but, as she tried to run away, Ronnie stabbed and killed her. Ronnie then
gave the knife to accused-appellant who stabbed the younger maid Remedios Hitta
from which she died. Thereafter, the two proceeded to Blumentritt Street and
divided the money Ronnie had taken from the house of Emma Cabrera. From
Blumentritt Street, Ronnie went to La Union, while accused-appellant proceeded
to Pangasinan. The extrajudicial confession is in Tagalog and signed by accused-
appellant in the presence of Atty. De los Reyes.
The prosecution next presented Atty. Bienvenido De los Reyes, a PC Captain of
the WPD Headquarters, U.N. Avenue, Manila. He said that on March 4, 1990, he
happened to be at Station 7 of the WPD, representing a client accused of illegal
recruitment. He was asked by Lt. Generoso Javier of the WPD Homicide Section
to assist accused-executing an extrajudicial confession. According to Atty. De los
Reyes, he apprised accused-appellant of his constitutional rights, explaining to him
that any statement made by him could be used against him in court, but accused-
appellant said he was willing to give a statement as in fact he did, confessing to the
commission of the crime of robbery with homicide. 6
The other prosecution witness was Dr. Marcial G. Cenido, medico-legal officer
who conducted autopsies on August 11, 1989 on the victims, Nena Berjuega and
Remedios Hitta. After proper identification (Exh. D) by the victim's employer,
Antonio Cabrera, Dr. Cenido prepared a postmortem report (Exh. A) that Nena
Berjuega suffered 16 stab wounds from which she died.
Dr. Cenido testified that the victim sustained 16 stab wounds which affected her
vital organs, specifically the right and left lungs and the heart, causing her death.
Six of these wounds were fatal so that she could not survive despite immediate
medical attention. He concluded that the assailant and the victim could be facing
each other when wounds nos. 1, 3 and 5 (Exhs. B-1, B-2, and B-4, respectively)
were inflicted and that the assailant may have been on the left lateral side of the
victim when he inflicted wound no. 8 (Exh. B-5) and at the victim's back when
assailant inflicted wound no. 16 (Exh. B-6). He said that there could be one or
more assailant who inflicted these wounds by using a single bladed weapon. 7
Dr. Cenido likewise prepared a postmortem report (Exh. F) that Remedios Hitta
suffered 12 stab wounds from which she died.
Dr. Cenido testified that the victim sustained 12 stab wounds with seven fatal ones
that caused her death. The fatal wounds damaged her left and right lungs and the
heart that she would not survive despite immediate medical attention. He observed
that in wounds nos. 1, 2 and 3 (Exhs. G-1, G-2, and G-3, respectively), the
assailant and the victim could be facing each other, while in wounds nos. 4, 9 and
11 (Exhs. G-4, G-6, and G-7, respectively), the assailant could have been at the
back of the victim. He said that there could be one or more assailant who inflicted
these wounds using a single bladed weapon. 8
Dr. Cenido prepared the certificates of death of the victims, Nena Berjuega and
Remedios Hitta (Exhs. C and H). He stated that the weapon used on both victims
could have been the same and that both victims sustained multiple stab wounds. 9
With the testimonies of Pat. Ines, Atty. De los Reyes, and Dr. Cenido and the
extrajudicial confession (Exh. O), as well as the sworn statements of Helen Moral
(Exh. I) and Anita De los Reyes (Exh. L), the prosecution rested its case.
The defense presented, as its sole witness, accused-appellant Jimmy Obrero y
Corla. Accused-appellant testified that he had worked for Angie Cabosas in
Blumentritt Street for four (4) months before the incident in this case. Angie was a
neighbor of his sister, Merly Asuncion, in Pangasinan. Angie's business was
selling dressed chickens. Accused-appellant said that at about 9:00 a.m. on August
11, 1989, he delivered dressed chickens to Emma Cabrera's residence on C.M.
Recto Avenue. He came back from his errand at around 10:20 a.m. and remitted
the amount of P2,000.00 which had been paid to him. He denied participation in
the commission of the crime and claimed that he was arrested without a warrant in
Pangasinan. He claimed that, after being informed of the charges against him, he
was beaten up and detained for a week and made to execute an extrajudicial
confession. He denied having known or seen Atty. De los Reyes before and stated
that he did not understand the contents of the extrajudicial confession which he
signed because he does not know how to read. 10
On August 31, 1995, the trial court rendered its decision, the dispositive portion of
which reads:
WHEREFORE, this Court finds accused JIMMY OBRERO Y
CORLA, guilty beyond reasonable doubt of the crime of
Robbery with Homicide, defined and punishable under Article
294(a) of the Revised Penal Code, and he is hereby sentenced to
suffer the penalty of reclusion perpetua, with all the accessory
penalties provided by law. He is further condemned to pay the
 heirs of the victims, Remedios Hitta and Nena Berjuega the sum
of FIFTY THOUSAND (P50,000.00) PESOS each as civil
indemnity for their death and the additional sum of P4,000.00 as
the amount of money taken, without subsidiary imprisonment in
case of insolvency.
His immediate transfer to the National Bilibid Prisons,
Muntinlupa is hereby ordered.
SO ORDERED.
Hence, this instant appeal. Accused-appellant assails the validity of this
extrajudicial confession which forms the basis of his conviction for the crime of
robbery with homicide. He claims that Atty. De los Reyes, who assisted him in
executing his confession, was not the counsel of his own choice. That was the
reason, he said, he refused to sign the booking and information sheet. He said he
signed the extrajudicial confession five times as a sign that it was involuntarily
executed by him.
Art. III, 12 of the Constitution provides in pertinent parts:
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel,
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 shall be inadmissible in evidence against him.
There are two kinds of involuntary or coerced confessions treated in this
constitutional provision: (1) those which are the product of third degree methods
such as torture, force, violence, threat, intimidation, which are dealt with in
paragraph 2 of 12, and (2) those which are given without the benefit of Miranda
warnings, which are the subject of paragraph 1 of the same 12.
Accused-appellant claims that his confession was obtained by force and threat.
Aside from this bare assertion, he has shown no proof of the use of force and
violence on him. He did not seek medical treatment nor even a physical
examination. His allegation that the fact that he was made to sign the confession
five times is proof that he refused to sign it.
To begin with, what accused-appellant claims he was made to sign five times is
not the same confession (Exh. O) but different parts thereof. He signed his name
on page 1 to acknowledge that he had been given the Miranda warnings. (Exh. O-
3) Then, he signed again as proof that after being given the Miranda warnings he
agreed to give a statement. (Exh. O-6) Next, he signed again his name at the end of
page 2 to authenticate that page as part of his confession. (Exh. O-7) Fourth, he
signed the third page at the end of his confession. (Exh. O-10) Fifth, he signed his
name again on the third page in which the jurat appears. (unmarked, [p. 3] of Exh.
O).
We discern no sign that the confession was involuntarily executed from the fact
that it was signed by accused-appellant five times.
Nor can it be inferred that the confession was involuntarily executed from the fact
that accused-appellant refused to sign the booking and information sheet. For if he
were simply forced to execute the extrajudicial confession and sign it for five
times, there is no reason the police was not able to make him sign the said sheet as
well. The inference rather was that no force was used to make accused-appellant
execute the confession, otherwise, he could also have been forced to sign the
booking and information sheet.
Extrajudicial confessions are presumed voluntary, and, in the absence of
conclusive evidence showing the declarant's consent in executing the same has
been vitiated, such confession will be sustained.
Moreover, the confession contains details that only the perpetrator of the crime
could have given. No one except accused-appellant could have stated that it was he
who killed the younger maid of Emma Cabrera (Remedios Hitta), that he
committed the crime together with his townmate, Ronnie Liwanag, and that he
used the same weapon given to him by Ronnie after the latter had stabbed and
killed the other helper (Nena Berjuega), details which are consistent with the
medico-legal findings that the wounds sustained by the two victims were possibly
caused by one and the same bladed weapon. It has been held that voluntariness of
a confession may be inferred from its being replete with details which could
possibly be supplied only by the accused, reflecting spontaneity and coherence
which cannot be said of a mind on which violence and torture have been
applied. 11 When the details narrated in an extrajudicial confession are such that
they could not have been concocted by one who did not take part in the acts
narrated, where the claim of maltreatment in the extraction of the confession is Q And who personally took down the
unsubstantiated and where abundant evidence exists showing that the statement statement of the accused?
was voluntarily executed, the confession is admissible against the declarant. There
is greater reason for finding a confession to be voluntary where it is corroborated A I was the one who personally took the
by evidence aliunde which dovetails with the essential facts contained in such statement of accused Obrero.
confession. 12
Q Do you know what was the gist of that
But what renders the confession of accused-appellant inadmissible is the fact that statement that was given to you, what was it
accused-appellant was not given the Miranda warnings effectively. Under the all about?
Constitution, an uncounseled statement, such as it is called in the United States
from which Art. III, 12(1) was derived, is presumed to be psychologically
A It's all about the admission of Jimmy
coerced. Swept into an unfamiliar environment and surrounded by intimidating
Obrero, the gruesome slaying of two
figures typical of the atmosphere of police interrogation, the suspect really needs househelps.
the guiding hand of counsel.
xxx xxx xxx
Now, under the first paragraph of this provision, it is required that the suspect in
custodial interrogation must be given the following warnings: (1) He must be
informed of his right to remain silent; (2) he must be warned that anything he says Q Before having taken down the admission of
can and will be used against him; and (3) he must be told that he has a right to Jimmy Obrero, what investigative steps did
counsel, and that if he is indigent, a lawyer will be appointed to represent him. 1 you undertake relative to his constitutional
right, patrolman?
In the case at bar, the prosecution presented Pat. Ines and Atty. De los Reyes to
establish that the above-enumerated requisites were fully satisfied when accused- A I informed Jimmy Obrero of his
appellant executed his extrajudicial confession. Pat. Benjamin Ines testified: 14 constitutional right to remain silent, to have an
attorney; that everything that he will say will
be used for or against him. He, however,
Q What happened during the investigation of
consented to proceed with the written
the accused?
statement.

A He consented to give a written statement to

Q Now, Patrolman, did you indicate his
me, sir.
constitutional rights that you stated in this
written statement of Jimmy Obrero?
Q Now, when accused Jimmy Obrero
consented to give statement, Patrolman, was
A Yes, sir, I put it on the statement which he
he assisted by counsel?
voluntarily gave.

A Yes, sir, we provided him with a lawyer. Q And will you please tell us which part of the
statement of Jimmy Obrero is it indicated, the
Q And who was that lawyer that was provided consent which he gave after having pointed
by you? out to him his constitutional right?

A Atty. Bienvenido De los Reyes, sir. A This portion sir, this "sagot-opo" and then it
was further affirmed by his signature over his
typewritten name, sir.
For his part, Atty. De los Reyes testified: 15
Q: Were you able to confront the suspect at
that time, herein accused?
A: Yes, sir, I told him for the purpose of
investigation custodial investigation I can
render my services to him and afterwards avail
the services of another lawyer and I told him
his rights under the law, sir.
Q: What was the reply of Jimmy Obrero, the
accused, in this case at that time you
confronted Jimmy Obrero?
A: He is willing at that time and [voluntarily]
gave his affirmation that he wanted to secure
my services, sir.
xxx xxx xxx
Q After having manifested that he will retain
your services as counsel for the investigation,
Atty. De los Reyes, what happened next?
A I told him the rights under the Constitution,
the right to remain silent, the right to secure
lawyer, the right not to give statement, the
right not to be placed in any identification
procedure in a police line up, and I told him
that all the evidences he might give will be
utilized against him in the court with respect to
the case and despite of that, he said he
wanted to give his statement to the police in
my presence.
Q Was he able to give statement to the police?
A Yes, sir. I was there inside the room with the
client and observing fairly [when he] gave
statement voluntarily.
Q Was that statement taken down into writing?
A In a question and answer form, sir.
Indeed, the waiver signed by accused-appellant reads:
MGA KARAPATAN AYON SA ATING BINAGONG
SALIGANG BATAS:
Ikaw, JIMMY OBRERO y CORLA, ay aking isasailalim sa
pagsisiyasat sa salang Pagnanakaw na may kasamang Pagpatay,
nais kong ipaalam sa iyo ang iyong mga karapatan ayon sa ating
Binagong Saligang Batas:
1. Karapatan mo ang manahimik at huwag sagutin ang mga
itatanong ko sa iyo;
2. Karapatan mo ang kumuha ng isang abogado na iyong sariling
pili na maaaring makatulong sa iyo sa imbistigasyon na ito at
kung hindi ka makakakuha ng iyong abogado ay bibigyan ka
namin ng isa na walang bayad para makatulong sa iyo;
3. Karapatan mo rin na malaman na ang lahat ng iyong sasabihin
dito sa iyong salaysay ay maaaring gamiting katibayan o
ebidensya laban o pabor sa iyo o sa kanino mang tao sa
alinmang hukuman dito sa Pilipinas.
Ngayon na naipaalam ko na sa iyo ang iyong mga karapatan,
nais mo pa bang magbigay ng iyong malaya at kusang loob na
salaysay?
SAGOT : (ni Jimmy Obrero y Corla) Opo.
TANONG: Kung ganoon ay sabihin mo ulit
ang iyong pangalan at lagdaan mo ito sa
ibabaw ng iyong pangalan na ipipirma o
imamakinilya ko?
(Sgd.)
JIMMY
OBRERO
y CORLA
There was thus only a perfunctory reading of the Miranda rights to accused-
appellant without any effort to find out from him whether he wanted to have
counsel and, if so, whether he had his own counsel or he wanted the police to
appoint one for him. This kind of giving of warnings, in several decisions 16 of this
Court, has been found to be merely ceremonial and inadequate to transmit
meaningful information to the suspect. Especially in this case, care should have
been scrupulously observed by the police investigator that accused-appellant was
specifically asked these questions considering that he only finished the fourth
grade of the elementary school. Indeed, as stated in People v.
Januario: 17
Ideally, therefore, a lawyer engaged for an individual facing
custodial investigation (if the latter could not afford one) should
be engaged by the accused (himself), or by the latter's relative or
person authorized by him to engage an attorney or by the court,
upon proper petition of the accused or person authorized by the
accused to file such petition. Lawyers engaged by the police,
whatever testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in many areas,
the relationship between lawyers and law enforcement
authorities can be symbiotic. 18
Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial
interrogations be competent and independent. Here, accused-appellant was assisted
by Atty. De los Reyes, who, though presumably competent, cannot be considered
an "independent counsel" as contemplated by the law for the reason that he was
station commander of the WPD at the time he assisted accused-appellant. On this
point, he testified as follows:
Q Now, whenever there is a crime committed
wherein the member of police to which you
belong or working but could not solve the
crime and then you were designated as counsel
to extend legal assistance to a suspect who is
under a custodial investigation and in that
conference with the suspect you may have
inquired confidential information, what would
you do, will you keep it to yourself or you
must have to divulge that to your co-
policeman because you know that?
A If I am the lawyer, then all the testimonies
and declaration is my preferential right, I can
divulge it even to my fellow officer.
Q Now, by the way, do you have authority to
practice the law profession, did you get
approval or permit from the civil
A Previously, when I was at the JAGO, we are
authorized verbally [as long as] it will not
hamper our time, we will not work our time
during the police duty, ma'am.
Q According to you, you were extending legal
assistance to your client who was charged of
illegal recruitment, do you not consider that
conflict of duty because no less than your
organization was the one investigating that?
A I am extending my legal assistance to the
client I am handling the case because if it is
true that he committed the crime then I will
back out, if I found suspicion and there is no
proof at all, I go to the litigation.
ATTY. ALISUAG:
That is all, Your Honor. 19
The trial court, agreeing with him, ruled:
As shown in Exhibit "O", accused consented to giving his
extrajudicial confession after he was informed of rights under
custodial investigation, by affixing his signature thereto (Exhibit
"O-3"). And absent any showing that the assisting lawyer,
though a station commander but of another police station, was
remiss in his duty as a lawyer, this Court holds that the
proceedings were regularly conducted. In fact, he testified that
he first asked the accused if he is accepting his legal services
(TSN, March 5, 1991, p. 4); that he informed the accused of his
Miranda rights and despite the warning, he decided to give his
confession just the same; that he was at all time present when the
accused was being interrogated with the accused giving his
answers voluntarily (Ibid, p. 4); that he read to the accused the
questions and answers before he signed his extrajudicial
confession (Ibid, p. 8). Clearly shown was the fact that Atty. De
los Reyes was equal to his duties as a lawyer than a member of
 the police force, when he lend his assistance to the accused The Director of Prisons is hereby directed to forthwith cause the release of
during his in-custody interrogation. 20 accused-appellant unless the latter is being lawfully held for another cause and to
inform the Court accordingly within ten (10) days from notice.
This is error. As observed in People v. Bandula, 21 the independent counsel
required by Art. III, 12(1) cannot be a special counsel, public or private SO ORDERED.
prosecutor, municipal attorney, or counsel of the police whose interest is
admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain Bellosillo, Quisumbing and Buena, JJ., concur.
and Station Commander of the WPD, was part of the police force who could not
be expected to have effectively and scrupulously assisted accused-appellant in the
De Leon, Jr., J., on leave.
investigation, his claim to the contrary notwithstanding. To allow such a
happenstance would render illusory the protection given to the suspect during
custodial investigation. 22 Republic of the Philippines
SUPREME COURT
Manila
For these reasons, we hold that accused-appellant's extrajudicial confession is
inadmissible in evidence.
EN BANC
Without the extrajudicial confession, the conviction of accused-appellant cannot
stand. The prosecution tried to introduce circumstantial evidence of accused- G.R. No. L-52016 May 13, 1981
appellant's guilt consisting of the sworn statements (Exhs. I and L) of Helen
Moral, the househelp who said accused-appellant used to deliver dressed chickens THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
to the Cabrera residence, and Anita de los Reyes who said that on March 11, 1989 vs.
she was passing in front of the Gatlin Building where the killing took place when SEVERINO DUERO, Accused whose death sentence is under automatic review.
she saw accused-appellant running down the stairs with blood in his hands. These
statements are likewise inadmissible for being hearsay. Consequently, there is no
identification of accused-appellant.
AQUINO, J.:1wph1.t
And while there is evidence of homicide consisting of the corpus delicti, there is
no evidence of the robbery except the confession (Exh. O) of accused-appellant This is an automatic review of the decision of the Court of First Instance of Iloilo
which, as already stated, is inadmissible. It does not matter that accused-appellant dated April 17, 1979, convicting Severino Duero of robbery with homicide,
failed to object to the introduction of these constitutionally proscribed evidence. sentencing him to death and ordering him to pay the heirs of Fausta Duero an
The lack of objection did not satisfy the heavy burden of proof which rested on the indemnity of fifteen thousand pesos and the sum of two thousand pesos which he
prosecution. We cannot thus affirm the conviction of accused-appellant because of took from her (Criminal Case No. 8860).
the procedural irregularities committed during custodial investigation and the trial
of the case. It may be that by this decision a guilty person is set free because the
The issue is whether the trial court erred in convicting the accused of robbery with
prosecution stumbled, but we are committed to the principle that it is far better to
homicide on the basis of his oral confession to the police station commander that
acquit several guilty persons than to convict one single innocent person.
he committed that offense but which confession was repudiated by him on the
witness stand and which was taken during custodial interrogation when the
WHEREFORE, the decision in Criminal Case No. 90-82187 of the Regional Trial accused was not informed of his rights to remain silent and to have counsel, as
Court, Branch 12, Manila, convicting accused-appellant Jimmy Obrero y Corla of required by section 20, Article IV of the Constitution.
the crime of robbery with homicide is REVERSED and accused-appellant is
hereby ACQUITTED on the ground of reasonable doubt.
There is no doubt as to the corpus delicti or the commission of robbery with
homicide.
In the evening of Sunday, October 24, 1976, Fausta Condino Vda. de Duero, an
octogenarian housekeeper living alone, was feloniously killed in her house located
at Barrio Banguit, Cabatuan, Iloilo (Exh. A).
She sustained two gaping wounds on the right cheek, two gaping wounds on the
neck, another gaping wound on the right shoulder and a bruise on the cheek. A
piece of wire, which was used to strangle her was tied around her neck (Exh. A). A
scythe was sticking in her neck (Letter "B" in Sketch, p. 4, Record).
Regarded as fatal by the examining physician was the wound in the neck which
pierced the jugular vein and which was connected with the other wound in the
neck and the shoulder wound (14 tsn June 16, 1978).
The gruesome crime was discovered in the afternoon of the following day, October
25, by Rodolfo Prevendido, the barangay captain. On noticing that the windows of
the old woman's house had not been opened in the morning, he suspected that
there was something amiss. He asked Doroteo Olmos, the grandson of the old
woman, to peep through the bedroom window.
When Olmos informed Prevendido that the old woman's things were scattered in
the bedroom, he requested Olmos to inform his uncle, Salvador Duero, a son of the
old woman, to come to the house (p. 8, Record).
Salvador entered the house through the bedroom window and saw his mother's
lifeless and bloodied body near the kitchen with a wire coiled around her neck and
a scythe stuck in it. He found that money and pieces of jewelry were missing (p. 7,
Record). A mallet was found on the floor near the victim's body.
The police and the rural health physician were notified. Patrolmen Tranquilino 0.
Tormon, Jr. and Cesar Moneva repaired to the scene of the crime. From the fact
that cooked rice and viands were found on the stove, Tormon concluded that the
crime was committed at supper time on the preceding night (p. 11, Record).
No eyewitness testified as to the commission of the offense. The principal
evidence of the prosecution is the testimony of Lieutenant Tomas C. Lujan, the
chief of police of Cabatuan.
Lujan declared that Severino voluntarily confessed to him that he (Severino)
committed the robbery with homicide but Severino refused to sign a confession.
Severino implicated Rufino Macaya of Lambunao, Iloilo. Lujan an and his men
brought Severino to Macaya's house. Lujan an found that Macaya had nothing to
do with the crime.
Lujan further testified that Severino said that the money stolen from the old
woman was in Severino's house at Sitio Rizal allowed Barrio Banguit. Lujan and
his men went to Severino's house. They did not find the stolen money.
Lujan was not the only police officer who heard Severino Duero's confession.
Patrolman Rolando N. Alag, a member of the arresting team that picked up Duero
and brought him at Lujan, stated in his sworn statement before the mayor that
Duero admitted that he took part in the robbery with homicide, that his
companions were Macaya and a certain Junior (whose parents were Severino's
godparents) and that it was he (Severino) who induced the commission of the
crime (p. 9, Record).
Alag further swore that after Macaya denied any participation in the commission
of the crime, Severino Duero admitted sole responsibility for it and confessed that
he took three thousand pesos after hitting Fausta Duero on the head with a mallet
strangling her with a piece of wire and hacking her with a scythe (p. 9, Record).
According to Alag Severino said that the robbery with homicide was committed on
momentary impulse after Fausta Duero, who had plenty of money, refused to lend
him fifty pesos (Back of page 9, Record).
Alag confirmed his sworn statement at the preliminary examination when the
municipal judge interrogated him. Alag said that Severino Duero made his
confession in the course of their conversation on the way to the police station and
not by reason of a formal investigation (p. 22, Record).
Alag clarified that, according to Severino, he had to kill Fausta Duero because the
old woman recognized him as the intruder (p. 22, Record).
Patrolman Rufino Tormon. another member of the arresting team, corroborated in
his swam statement Alag's declaration as to Severino Duero's confession. Tormon
declared at the preliminary examination that Severino Duero knew that Fausta
Duero had money because, according to Severino, Fausta's daughter Maurine
repaid to Fausta the sum of one thousand one hundred pesos (which amount Fausta
had not yet deposited in the bank), another person named Alag Duero paid to
Fausta her debt and Fausta had ten sacks of palay (pp. 10 and 14, Record),
Tormon said that Severino met Fausta at a store in the morning of October 23,
1976 (the day before the crime was committed). Fausta was willing to lend
Severino one hundred fifty pesos (p. 14, Record).
Buenaventura Hudieras, the barangay captain of Barrio Pamulogan, which adjoins
Barrio Banguit where the old woman resided, declared in his sworn statement that
in the evening of October 26 (two days after the commission of the crime) he was
drinking liquor (biti-biti) with Severino Duero in the house of Valentino Pambo,
Hudieras' brother-in-law. On that occasion, Severino told Hudieras that Fausta
Duero was killed by clubbing her with a mallet choking her with a piece of wire
and hacking her with a scythe (p. 6, Record).
Hudieras stated that when he remarked that the best thing to do was to kill the
killer of Fausta Duero, Severino behaved in an unnatural manner and said that
Hudieras could testify that he saw daily Severino harvesting palay ("Si 'To boy nga
dya, baryo kapitan dya, sarang makatestigos nga adlaw-adlaw doon takon
nagapanggarab") (p. 6, Record).
Hudieras confirmed his affidavit at the preliminary examination. He said that his
suspicion was that Severino Duero killed Fausta Duero (p. 16, Record).
The sworn statements of Alag, Tormon and Hudieras and others were the basis of
the criminal complaint for robbery with homicide filed by Lieutenant Lujan an in
the municipal court against Severino Duero. They did not testify at the trial most
probably because Lujan himself, the station commander, took the witness stand to
give evidence on the same oral confession allegedly made by Severino to the
police.
To reinforce and render credible Lujan's testimony on Duero's oral confession of
guilt, Tranquilino Duero, a second cousin of the accused, testified that at about
five o'clock in the afternoon of October 24, 1976, he met the accused in Barrio
Tabucan which is about two kilometers away from the old woman's house in
Barrio Banguit, In the course of their conversation, Severino allegedly revealed to
Tranquilino that he (Severino) would rob his owao or grandmother, Fausta Duero.
Tranquilino said to Severino: "Are you an Idiot?"
In answer, Severino explained that Fausta Duero would not even lend him ten
pesos or a ganta of rice, a fact known to one Roman Sipaya. The next day when
Tranquilino learned from Severino that the old woman was killed, it occurred to
Tranquilino that Severino was responsible for the killing (2-3 tsn March 10, 1978).
Another prosecution witness, Jose Montao, testified that about six o'clock in the
evening of October 24, 1976, when he passed by the house of Fausta Duero, he
saw Severino Duero near the stairs of the house.
Severino was calling the old woman. Montao was just about three meters away
from Severino when Montao passed by him (6 tsn April 21, 1978). Montao's
house was about one hundred meters away from Fausta's house. He was going to
watch television in his uncle's house.
Montao had known Severino Duero for about four years. He was on friendly
terms with Severino. The latter used to gather mangoes for him. Montao was
positive that Severino killed the old woman (6 tsn April 21, 1978).
Another prosecution witness, Wilfredo Cenizal (Senesal), also a resident of Barrio
Pamulogan, testified that at six-thirty in the morning of October 25, 1976 or about
ten hours after the commission of the crime, Cenizal had a conversation with
Severino Duero.
Severino spontaneously revealed to Cenizal that he (Severino) helped his
grandmother (owao, the colloquial term for grandmother) who was "held up by the
bandit" and that her money amounting to two thousand pesos was taken from her.
Severino recounted to Cenizal that the old woman was struck in the head with a
hammer and wounded with a scythe.
Cenizal's testimony was a confirmation of his affidavit taken on October 30, 1976
by a policeman wherein he stated that, according to Severino, the old woman was
killed by striking her with a mallet strangling her with a piece of wire and
wounding her with a scythe and that the money taken from the old woman was in a
purse (buon-buon) placed in a bamboo basket (tabungos) (p. 5, Record). Cenizal
confirmed his affidavit at the preliminary examination (p. 17, Record).
The circumstantial evidence summarized above shows that the prosecution had a
strong case against Severino Duero in spite of the absence of the testimony of an
eyewitness. During the trial no objection was interposed by the defense to the
evidence on Duero's oral confession.
Indeed, the trial court on the basis of such evidence found Severino guilty of
robbery with homicide beyond reasonable doubt. He did not appeal from the trial
court's decision.
But the trouble is that at the trial Severino repudiated his alleged oral confession
and even claimed that he was maltreated by the police. Lujan in his rebuttal
testimony denied the maltreatment.) Severino said that the victim was "the wife of
my grandfather", meaning that "the husband of Fausta Duero (the victim) was the
grandfather of Severino Duero" (28 and 37 tsn January 5, 1979).
As alibi, Severino testified that he was in his house when the crime was
perpetrated. His wife Salvacion, his neighbor Adriano Lopez and his friends, the
spouses Rufino Macaya and Erlinda Macaya, confirmed his alibi.
Severino Duero's counsel de oficio in this Court contends that the trial court erred
in admitting the oral testimony on Severino Duero's oral confession, in giving
credence to the testimonies of Lujan, Cenizal, Montao and Tranquilino Duero, in
finding that robbery with homicide was committed and in not sustaining Severino's
alibi.
The Solicitor General agrees with the counsel de oficio's contention that Severino's
oral confession is inadmissible in evidence by reason of Article IV of the
Constitution which provides: 1wph1.t
SEC. 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of
an offense shall have the right to remain silent and to counsel,
and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this
section shall be admissible in evidence.
All the foregoing provisions are new except the first sentence, regarding the right
against self-incrimination (nemo tenetur seipsum accusare), which is the only
provision found in section 18 of the Bill of Rights of the 1935 Constitution, now
revised or expanded in section 20 (See article 125 of the Revised Penal Code and
Republic Act No. 85-1 as to the right of the accused, who is in police custody, to
confer and communicate at anytime with his counsel.)
If this case were to be decided under the 1935 Constitution, the trial court's
judgment of conviction could be affirmed. But we have to decide it under the rule
in the 1973 Constitution as to a confession obtained while the confessant is under
police custody. And that rule applies squarely to this case (Magtoto vs. Manguera,
Simeon vs. Villaluz and People vs. Isnani L37201-02, L-37424 and L-38929,
March 3, 1975, 63 SCRA 4.)
Inasmuch as the prosecution in this case failed to prove that before Duero made his
alleged oral confession he was informed of his rights to remain silent and to have
counsel and because there is no proof that he knowingly and intelligently waived
those rights, his confession is inadmissible in evidence.
After discarding Lujan's testimony on Duero's oral confession, the rest of the
prosecution's circumstantial evidence against him is not adequate for his
conviction. His acquittal follows as a matter of course.
The new provisions in section 20, Article IV of the 1973 Constitution were
adopted from the ruling in Miranda vs. Arizona, 384 U.S. 436, 16 L. Ed. 2nd 694
("an earthquake in the world of law enforcement") which specifies the following
procedural safeguards for in-custody interrogation of accused
persons: 1wph1.t
Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently.
If, however, he indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before
speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police may not
question him.
The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until he
has consulted with an attorney and thereafter consents to be
questioned.
As restated by Chief Justice Warren in the Miranda case, the following procedure
should be adhered to:
At the outset, if a person in custody is to be subjected to interrogation, he must
first be informed in clear and unequivocal terms that he has the right to remain
silent. 1wph1.t
For those unaware of the privilege the warning is needed simply
to make them aware of it the threshold requirement for an
intelligent decision as to its exercise.
More important, such a warning is an absolute pre-requisite in
overcome the inherent pressures of the interrogation
atmosphere. ... .
Further, the warning will show the individual that his
interrogators are prepared to recognize his privilege should he
choose to exercise it. ... .
The warning of the right to remain silent must be accompanied
by the explanation that anything said can and will be used
against the individual in court. This warning is needed in order
to make him aware not only of the privilege, but also of the
consequences of forgoing it. ... .
An individual need not make a pre-interrogation request for a
lawyer. While such request affirmatively secures his right to
have one, his failure to ask for a lawyer does not constitute a
waiver. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after
the warnings we here delineate have been given. The accused
who does not know his rights and therefore does not make a
request may be the person who most. needs counsel. ... .
If an individual indicates that he wishes the assistance of counsel
before any interrogation occurs, the authorities cannot rationally
ignore or deny his request on the basis that the individual does
not have or cannot afford a retained attorney. ... .
In order fully to apprise a person interrogated of the extent of his
rights under this system then, it is necessary to warn him not
only that he has the right to consult with an attorney, but also
that if lie is indigent a lawyer will be appointed to represent
him. ... .
Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at anytime prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease. ... . If the individual cannot obtain an
attorney and he indicates that he wants one before speaking to
police, they must respect his decision to remain silent. ... .
If the interrogation continues without the presence of an attorney
and a statement is taken, a heavy burden rests on the government
to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to
retained or appointed counsel. ... .
An express statement that the individual is willing to make a
statement and does not want an attorney followed closely by a
statement could constitute a waiver. ... .
The warnings required and the waiver necessary in accordance
with our opinion today are, in the absence of a fully effective
equivalent, prerequisites to the admissibility of any statement
made by a defendant.
In the Miranda case, the Federal Supreme Court made it clear that what is
prohibited is the "incommunicado interrogation of individuals in a police
dominated atmosphere, resulting in self- incriminating statements without full
warnings of constitutional rights."
The State's right to prosecute criminals may be a great right but, as Lord
Chancellor Sankey observed, it is not permissible "to do a great right by doing a
little wrong".
The Miranda ruling does not mean that the police should stop a person who enters
a police station and states that he wishes to confess to a crime. It does not affect
volunteered statements of guilt by persons not in police custody.
At the risk of repetitiousness we reproduce hereunder Chief Justice Warren's
summary of the procedural safeguards for persons in police custody where the
interrogation is regarded as the commencement already of the trial or adversarly
system: 1wph1.t
He (the accused) must be warned prior to any questioning that he
has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence
of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him
throughout the interrogation.
After such warnings have been given, and such opportunity
afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer questions or make a
statement.
But unless and until such warnings and waiver are demonstrated
by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against him.
The above procedure was not followed by the police in this case. Hence, Severino
Duero's oral confession is inadmissible in evidence. Without that confession, the
prosecution's other evidence is not sufficient to establish Duero's guilt beyond
reasonable doubt.
WHEREFORE, the death penalty is set aside. The accused is acquitted. He should
be released immediately unless he is being detained for another offense. Costs de
oficio.
SO ORDERED.
Fernando C.J., Teehankee, Barredo, Makasiar, Fernandez, Guerrero, Abad
Santos, De Castro and Melencio-Herrera, JJ., concur.1wph1.t
Conception Jr,. J., is on leave.
Republic of the Philippines
SUPREME COURT
EN BANC
G.R. No. 132154 June 29, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PACITO ORDOO Y NEGRANZA alias ASING and APOLONIO MEDINA
Y NOSUELO alias POLING, accused-appellants.
PER CURIAM:
COURTS are confronted, repeatedly, with the difficult task of scrutinizing the
sufficiency of extrajudicial confessions as basis for convicting the accused. The
drive to apprehend the culprits at any cost, particularly in crimes characterized by
brutality and savagery, not too infrequently tempts law enforcement agencies to
take unwarranted shortcuts and disregard constitutional and legal constraints that
are intended to ensure that only the guilty are punished. In the delicate process of
establishing guilt beyond reasonable doubt, courts play a crucial role in assuring
that the evidence gathered by government agents scrupulously meets the exacting
constitutional standards which if not met impose a strict exclusionary rule, i.e.,
"any confession or admission obtained in violation of Art. II, Sec. 12 (1), shall be
inadmissible in evidence."
This case is on automatic review of the 11 December 1997 Decision of the
Regional Trial Court, Br. 34, Balaoan, La Union, in Crim. Case No. 2415 finding
both accused Pacito Ordoo y Negranza alias Asing and Apolonio Medina y
Nosuelo alias Poling guilty beyond reasonable doubt of rape with homicide and
imposing upon each of them two (2) separate death penalties.
The records show that on 5 August 1994 the decomposing body of a young girl
was found among the bushes near a bridge in Barangay Poblacion, Santol, La
Union. The girl was later identified as Shirley Victore, fifteen (15) years old, a
resident of Barangay Guesset, Poblacion, Santol, La Union, who three (3) days
before was reported missing. Post-mortem examination conducted by Dr. Arturo
Llavore, a medico-legal officer of the NBI, revealed that the victim was raped and
strangled to death.
Unidentified sources pointed to Pacito Ordoo and Apolonio Medina as the
authors of the crime. Acting on this lead, the police thereupon invited the two (2)
suspects and brought them to the police station for questioning. However, for lack
of evidence then directly linking them to the crime, they were allowed to go home.
On 10 August 1994 the accused Pacito Ordoo and Apolonio Medina returned to
the police station one after another and acknowledged that they had indeed
committed the crime. Acting on their admission, the police immediately conducted
an investigation and put their confessions in writing. The investigators however
could not at once get the services of a lawyer to assist the two (2) accused in the
course of the investigation because there were no practicing lawyers in the
Municipality of Santol, a remote town of the Province of La Union. Be that as it
may, the statements of the two (2) accused where nevertheless taken. But before
doing so, both accused were apprised in their own dialect of their constitutional
right to remain silent and to be assisted by a competent counsel of their choice.
Upon their acquiescence and assurance that they understood their rights and did
not require the services of counsel, the investigation was conducted with the Parish
Priest, the Municipal Mayor, the Chief of Police and other police officers of
Santol, La Union, in attendance to listen to and witness the giving of the voluntary
statements of the two (2) suspects who admitted their participation in the
crime.1wphi1.nt
The first to confess was Apolonio Medina who in addition to the Parish Priest, the
Mayor, the Chief of Police and the other police officers was also accompanied by
his wife and mother. Apolonio Medina narrated that in the morning of 2 August
1994 while he was walking towards the house of Pacito Ordoo in Sitio Buacao,
Poblacion, Santol, La Union, he noticed a young woman walking towards the
school at the Poblacion. Upon reaching Sitio Buacao, he saw Pacito Ordoo
standing along the road. When the woman reached him he suddenly grabbed her,
held her tightly and covered her mouth with his right hand. As Medina neared
them, Ordoo turned to him and said, "Come and help me, I am feeling uneasy."
Although Medina claimed he was surprised at the request, he nonetheless went to
Ordoo, helped him hold the legs of the young woman including her bag and
umbrella and together they carried her to the hushes where they laid her down.
Medina held her legs as requested while Ordoo continued to cover her mouth
with his hand and boxing her many times on the head. When she was already weak
and weary Ordoo knelt near her, raised her skirt and lowered her panty down to
her knees. Medina continued to remove her panty as Ordoo removed his short
pants, then his briefs. Ordoo then raped her, boxed her head continuously, with
Medina continuously pinning her legs down and boxing those legs every time she
struggled.
After Ordoo had satiated himself Medina took his turn in raping the same victim
with Ordoo holding her legs. After they were through, Medina left to watch out
for intruders while Ordoo tied a vine around the girl's neck, hanged her on a tree
that ended her life. Then, they went back to the road and parted ways.
After Medina said his piece, his wife and mother suddenly burst into tears. He then
affixed his signature on his statement and so did his wife, followed by all the other
witnesses who listened to his confession.
Pacito Ordoo narrated his story in the afternoon. According to him, in the
morning of 2 August 1994 he was on his way to Sitio Guesset, Barangay
Manggaan, Santol, La Union, when he saw a girl followed by Apolonio Medina.
When the girl was near him he immediately grabbed her and covered her mouth.
Medina drew near, held her two legs, bag and umbrella and together they carried
her into the thicket. After laying her down Ordoo boxed her breasts and face
while Medina boxed her legs. When she became weak Ordoo raised her skirt and
lowered her panty while Medina completely removed it. Ordoo then removed his
pants and walker briefs, went on top of Shirley and as Medina spread her legs
Ordoo immediately inserted his penis into her vagina. After ejaculating Ordoo
turned to Medina for him to take his turn in raping the girl. Ordoo was now
holding her legs. At the end of his narration Ordoo affixed his thumbmark on his
statement in lieu of his signature as he did not know how to write.
Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol police
station. News about the apprehension and detention of the culprits of the rape-slay
of Shirley Victore soon spread that Roland Almoite, leading radio announcer of
radio station DZNL, visited and interviewed them. In the interview which was
duly tape-recorded both accused admitted again their complicity in the crime and
narrated individually the events surrounding their commission thereof. According
to Medina, his remorse in having committed the crime was so great but his
repentance came too late. 1 He and Ordoo hoped that the parents of Shirley
Victore would forgive them. 2 Upon conclusion of the interview, Roland Almoite
immediately went to radio station DZNL and played the taped interview on the air.
The same interview was played again on the air the following morning and was
heard by thousands of listeners.
A couple of days later, the police brought the two (2) accused to the office of the
PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-door
session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his
constitutional rights and, even though their confessions were already written in
their dialect, explained to them each of the questions and answers taken during the
investigation. He likewise advised them to ponder the consequences of their
confessions, leading them to defer the affixing of their second
signature/thumbmark thereon.
After a week or so, the two (2) separately went back to Atty. Corpuz and informed
him of their willingness to affix their signatures and thumbmarks for the second
time in their respective confessions. Once again Atty. Corpuz apprised the two (2)
accused of their constitutional rights, explained the contents of their respective
statements, and finally, accompanied them to Judge Fabian M. Bautista, MTC
judge of Balaoan, La Union, who further apprised the two (2) accused of their
constitutional rights and asked them if they had been coerced into signing their
confessions. They assured Judge Bautista that their statements had been given
freely and voluntarily. Upon such assurance that they had not been coerced into
giving and signing their confessions, Judge Bautista finally asked the accused
Pacito Ordoo and Apolonio Medina to affix their signatures/thumbmarks on their
respective confessions, and to subscribe the same before him. Atty. Corpuz then
signed their statements as their assisting counsel, followed by a few members of
the MTC staff who witnessed the signing.
On arraignment, in a complete turnabout, the two (2) accused pleaded not guilty.
In his defense, Pacito Ordoo testified that on 5 August 1994, while he was
cooking at home, the police arrived and invited him to the headquarters for
questioning. The police asked him his whereabouts on 2 August 1994 and he
answered that he worked in the farm of Barangay Captain Valentin Oriente.
According to Ordoo, the questioning took one (1) hour with the police boxing
him several times on his stomach and on his side. They even inserted the barrel of
a gun into his mouth in an effort to draw out answer from him. This being fruitless,
he was placed in jail and released only the following morning, 6 August 1994.
Three (3) days later, or on 9 August 1994, the police once again invited him to the
headquarters where he was told that he was responsible for the rape and death of
Shirley Victore.
Accused Pacito Ordoo insisted on his innocence and maintained that he was
working with a certain barangay captain; nonetheless, he was detained. Later that
night the police took him out from jail and brought him to the room of investigator
SPO4 Alfredo A. Ominga where he was hit with the butt of an armalite and forced
to admit to the rape and slay of Shirley Victore. On 10, August 1994 SPO4
Alfredo A. Ominga took a typewriter and asked questions from him for one (1)
hour without a lawyer assisting him nor a priest witnessing the investigation. A
barrel of a gun was placed inside his mouth forcing him to admit the commission
of the crime and to affix his thumbmark on the document. He was also brought to
the office of the PAO lawyer twice but did not affix his thumbmark on any
document because he could not understand its contents. A radio announcer visited
him inside his cell for an interview but he declined to answer his questions. He
only answered the radio announcer during his fourth visit when SPO4 Alfredo A.
Ominga threatened to hit him if he did not admit to the commission of the crime.
As to Apolonio Medina, he heard from the police that he was also detained but
maintained that he (Ordoo) did not know Apolonio.
For his part, Apolonio Medina testified that on 5 August 1994 while he was
pasturing his carabaos at Barangay Guesset, in Santol, La Union, the police came
and invited him for questioning. They asked him where he was on 2 August 1994
and he replied that he was carrying bananas for his aunt Resurreccion. The
interrogation lasted for about an hour with neither a lawyer assisting him nor a
relative being present, after which he was placed in jail. Later, he was brought out
and taken to a hut near the headquarters where he was boxed, kicked and hit with a
nightstick. He lost consciousness and recovered only after he was brought back to
his cell. That same night he was returned to the hut outside the police headquarters
where he was again boxed. On 8 August 1994, with his legs tied to the ceiling
beam, he was hanged upside down. His breast was hit with the butt of a gun which
was fired near his ear. A barrel of a gun was inserted into his mouth. He was
threatened that he would be salvaged if he did not admit to killing the victim. He
was forced to sign a statement but could not recall its date of execution. He was
brought to the office of the PAO lawyer twice but he did not sign the document.
The investigator warned him that if he did not sign he would be buried in the pit
which he himself dug. On his third visit to the office of the PAO lawyer he signed
the document. He could not remember having gone to the office of the MTC Judge
of Balaoan, La Union.1avvphi1 He was interviewed by a radio announcer and was
instructed by the investigator to narrate those that were in his statement. He
admitted he knew Pacito Ordoo. He showed his bruises to his mother when the
latter visited him in jail, prompting the latter to request medical treatment for her
son but the request was denied.
On 11 December 1997 the trial court adjudged accused Pacito Ordoo and
Apolonio Medina guilty of the crime of rape with homicide attended with
conspiracy, and imposed upon each of them two (2) death penalties on the basis of
their extrajudicial confessions.
The accused are now before us assailing their conviction on the ground that
constitutional infirmities attended the execution of their extrajudicial
confessions, i.e., mainly the lack of counsel to assist them during custodial
investigation thereby making their confessions inadmissible in evidence.
Under the Constitution 3 and the rules laid down pursuant to law 4 and
jurisprudence, 5 a confession to be admissible in evidence must satisfy four (4)
fundamental requirements: (a) the confession must be voluntary; (b) the confession
must be made with the assistance of competent and independent counsel; (c) the
confession must be express; and, (d) the confession must be in writing. 6 Among
all these requirements none is accorded the greatest respect than an accused's right
to counsel to adequately protect him in his ignorance and shield him from the
otherwise condemning nature of a custodial investigation. The person being
interrogated must be assisted by counsel to avoid the pernicious practice of
extorting false or coerced admissions or confessions from the lips of the person
undergoing interrogation for the commission of the offense. 7 Hence, if there is no
counsel at the start of the custodial investigation any statement elicited from the
accused is inadmissible in evidence against him. This exclusionary rule is
premised on the presumption that the defendant is thrust into an unfamiliar
atmosphere and runs through, menacing police interrogation procedures where the
potentiality for compulsion, physical and psychological, is forcefully apparent. 8
In the instant case, custodial investigation began when the accused Ordoo and
Medina voluntarily went to the Santol Police Station to confess and the
investigating officer started asking questions to elicit information and/or
confession from them. At such point, the right of the accused to counsel
automatically attached to them. Concededly, after informing the accused of their
rights the police sought to provide them with counsel. However, none could be
furnished them due to the non-availability of practicing lawyers in Santol, La
Union, and the remoteness of the town to the next adjoining town of Balaoan, La
Union, where practicing lawyers could be found. At that stage, the police should
have already desisted from continuing with the interrogation but they persisted and
gained the consent of the accused to proceed with the investigation. To the credit
of the police, they requested the presence of the Parish Priest and the Municipal
Mayor of Santol as well as the relatives of the accused to obviate the possibility of
coercion, and to witness the voluntary execution by the accused of their statements
before the police. Nonetheless, this did not cure in any way the absence of a
lawyer during the investigation.
In providing that during the taking of an extrajudicial confession the accused's
parents, older brothers and sisters, his spouse, the municipal mayor, municipal
judge, district school supervisor, or priest or minister of the gospel as chosen by
the accused may be present, RA 7438 does not propose that they appear in the
alternative or as a substitute for counsel without any condition or clause. It is
explicitly stated therein that before the above-mentioned persons can appear two
(2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a
valid waiver must be executed. RA 7438 does not therefore unconditionally and
unreservedly eliminate the necessity of counsel but underscores its importance by
requiring that a substitution of counsel with the above-mentioned persons be made
with caution and with the essential safeguards.
Hence, in the absence of such valid waiver, the Parish Priest of Santol, the
Municipal Mayor, the relatives of the accused, the Chief of Police and other police
officers of the municipality could not stand in lieu of counsel's presence. The
apparent consent of the two (2) accused in continuing with the investigation was of
no moment as a waiver to be effective must be made in writing and with the
assistance of counsel. 9 Consequently, any admission obtained from the two (2)
accused emanating from such uncounselled interrogation would be inadmissible in
evidence in any proceeding.
Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not
remedy this omission either. Although there was a showing that the PAO lawyer
made a thorough explanation of the rights of the accused, enlightened them on the
possible repercussions of their admissions, and even gave them time to deliberate
upon them, this aid and valuable advice given by counsel still came several days
too late. It could have no palliative effect. It could not cure the absence of counsel
during the custodial investigation when the extrajudicial statements were being
taken. 10
The second affixation of the signatures/thumbmarks of the accused on their
confessions a few days after their closed-door meeting with the PAO lawyer, in the
presence and with the signing of the MTC judge, the PAO lawyer and other
witnesses, likewise did not make their admissions an informed one. Admissions
obtained during custodial investigation without the benefit of counsel although
reduced into writing and later signed in the presence of counsel are still flawed
under the Constitution. 11 If the lawyer's role is diminished to being that of a mere
witness to the signing of a prepared document albeit an indication therein that
there was compliance with the constitutional rights of the accused, the requisite
standards guaranteed by Art. III, Sec. 12, par. (1), are not met. The standards
utilized by police authorities to assure the constitutional rights of the accused in
the instant case therefore fell short of the standards demanded by the Constitution
and the law.
It should further be recalled that the accused were not effectively informed of their
constitutional rights when they were arrested, so that when they allegedly admitted
authorship of the crime after questioning, their admissions were obtained in
violation of their constitutional rights against self-incrimination under Sec. 20, Art.
IV, of the Bill of Rights.
As testified to, the police informed the accused of their rights to remain silent and
to counsel in a dialect understood by them, but despite the accused's apparent
showing of comprehension, it is doubtful if they were able to grasp the
significance of the information being conveyed. Pertinent portions of the
extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into
English, read
PRELIMINARY
Mr. Pacito Ordoo, I am informing you that you are being investigated of
an offense but before we continue, I tell you that you have the right to
remain silent under the new Constitution of the Philippines.
And you are also herein reminded that all statements you give may be
used for or against you in any Philippine court as evidence and it is herein
likewise reminded that you have the right to secure the services of a
lawyer of your own choice to represent you in this investigation, do you
understand all these?
A: Yes, sir because all that I will state will only be the truth.
Q: Do you want that we will continue with this investigation
after having been appraised of all your rights?
A: Yes, sir.
Q: And, do you want that we continue with the investigation
even without a lawyer of your own choice to represent you?
A: Yes, sir.
Q: Are you now prepared to give your voluntary statement
consisting only the truth, without any lies whatsoever?
A: Yes, sir . . . .
PRELIMINARY
Mr. Apolonio Medina, I inform you that you are being investigated of an
offense but before we proceed with this investigation, I am informing you
that you have the right to remain silent to all questions asked of you,
according to the new Philippine Constitution.
 And you are likewise reminded that all statements you give may be used
for or against you in any Philippine court and you have a right to have a
lawyer of your own choice to represent you in this investigation, do you
understand this?
ANSWER Yes, sir.
Q: After having known all your rights; do you want that we
continue with the investigation?
A: Yes, sir.
Q: Do you want that we continue with this investigation even
without a lawyer to represent you?
A: Yes, sir because all that I will state are the truth.
Q: Are you now prepared to give your voluntary statement
consisting only the truth, nothing but the truth?
A: Yes, sir.
The advice proffered by the investigating officer to Ordoo starkly resembles that
given to Medina, thus leading us to conclude that the advice was given
perfunctorily and belonged to the stereotyped class a long question by the
investigator informing the appellant of his right followed by a monosyllabic
answer which this Court has condemned for being unsatisfactory. 12 The desired
role of counsel in the process of custodial investigation is rendered meaningless if
the lawyer gives an advice in a cursory manner as opposed to a meaningful
advocacy of the rights of the person undergoing questioning. If advice is given
casually and tritely as to be useless, understanding on the part of the accused is
sacrificed and the unconstrained giving up of a right becomes impaired.
To be informed of the right to remain silent and to counsel contemplates "the
transmission of meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle." It is not enough for
the interrogator to merely enumerate to the person under investigation his rights as
provided in Sec. 12, Art. III, of the Constitution; the interrogator must also explain
the effect of such provision in practical terms, e.g., what the person under
interrogation may or may not do, and in a language the subject fairly
understands. 1
With the extrajudicial confession of the accused rendered inadmissible in
evidence, we are left with the interview taken by DZNL radio announcer Roland
Almoite as evidence. The taped interview was offered to form part of the
testimony of witness Roland Almoite to whom the admissions were made and to
prove through electronic device the voluntary admissions by the two (2) accused
that hey raped and killed Shirley Victore. The defense objected to its acceptance
on the ground that its integrity had not been preserved as the tape could easily have
been spliced and tampered with. 14 However, as Roland Almoite testified, it was
the original copy of the taped interview; it was not altered; the voices therein were
the voices of the two (2) accused; and, the defense never submitted evidence to
prove otherwise. Under the circumstances, we are inclined, as was the lower court,
to admit the authenticity of the taped interview.
A review of the contents of the tape as included in Roland Almoite's testimony
reveals that the interview was conducted free from any influence or intimidation
from police officers and was done willingly by the accused. Despite allegations to
the contrary, no police authority ordered or forced the accused to talk to the radio
announcer. While it may be expected that police officers were around since the
interview was held in the police station, there was no showing that they were
within hearing distance nor within the vicinity where the interview was being
conducted. At most, the participation of the police authorities was only to allow
Roland Almoite to conduct an interview.
The taped interview likewise revealed that the accused voluntarily admitted to the
rape-slay and even expressed remorse for having perpetrated the crime. We have
held that statements spontaneously made by a suspect to news reporters on a
televised interview are deemed voluntary and are admissible in evidence. 15 By
analogy, statements made by herein accused to a radio announcer should likewise
be held admissible. The interview was not in the nature of an investigation as the
response of the accused was made in answer to questions asked by the radio
reporter, not by the police or any other investigating officer. When the accused
talked to the radio announcer, they did not talk to him as a law enforcement
officer, as in fact he was not, hence their uncounselled confession to him did not
violate their constitutional rights.
Sec. 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal
confessions of the two (2) accused to the radio announcer. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The rights
enumerated under Sec. 12, Art. III, are guaranteed to preclude the slightest use of
coercion by the state as would lead the accused to admit something false, not to
prevent him from freely and voluntarily telling the truth. 16
The Bill of Rights does not concern itself with the relation between a private
individual and another individual. 17 It governs the relationship between the
individual and the State. The prohibitions therein are primarily addressed to the A: I said, "What do you feel on your body?" and I also said, "What part of
State and its agents. They confirm that certain rights of the individual exist without your body are (sic) painful?"
need of any governmental grant, rights that may not be taken away by government,
rights that government has the duty to protect. 18Governmental power is not Q: What did they answer?
unlimited and the Bill of Rights lays down these limitations to protect the
individual against aggression and unwarranted interference by any department of
A: They did not answer me, sir.
government and its agencies.
Q: More or less, how many questions did you ask?
The admissions of the accused before the radio announcer and duly tape-recorded
are further bolstered and substantiated by the findings of the NBI Medico-Legal
Officer as reflected in the Autopsy Report/Post Mortem Findings. The narration of A: Only that, sir.
the accused Apolonio Medina that Asing boxed the victim, who was struggling as
she was being raped, 19 was proved by the Autopsy Report stating that the victim Q: After you have observed the prisoners, did you notice any injury?
suffered contusions on the leg, right, lateral aspect, middle third, etc.; 20 that
accused Pacito Ordoo boxed the face of the victim to make her weak 21 was A: None, sir . . . .
proved by the testimony of the NBI Medico-Legal Officer that there was
blackening on the face of the victim due to hematoma caused by violence or Q: . . . . You noticed any injury on their bodies?
boxing on her face; 22 and, that accused Pacito Ordoo hanged the victim on a tree
by tying a vine around her neck, 2 was proved by the finding of a depressed mark
A: None, sir, that is why I looked to see what was really painful. 25
involving the anterior and lateral portions of the neck. 24

Considering that the doctor was a witness for the defense, it was surprising that she
As to the assertion of the accused that they were tortured and subjected to inhuman
never mentioned about any maltreatment. She saw not a single scratch on the
treatment, we find such allegations baseless. The accused were given several
bodies of the accused. She even inquired into their physical well-being but they
opportunities to decry the maltreatment they allegedly suffered in the hands of the
did not tell her of any pain or injury. They could have easily asked the doctor for
police but at no time did they complain about it. First, they could have told the
immediate treatment if indeed they were physically harmed, but they did not. This
radio announcer outright of the abuses they were subjected to before signing their
puts their claim of maltreatment into serious doubt. With this, the testimony of the
confessions. Second, when they were brought before the PAO lawyer they
mother of the accused Apolonio Medina alleging that the police refused treatment
likewise did not make any such claims but instead chose to ponder over the
for her son despite his critical condition becomes a fabrication, a mere figment of
lawyer's advice and deferred the signing of their confessions. Lastly, they had the
the imagination. As found by the lower court, her tale of buying an antibiotic for
chance to tell the MTC judge about the fatal defect of their confessions, if there
her son, all on her own, without the prescription of a doctor, is hard to believe
was any, when the latter asked them whether they voluntarily signed the same and
since she is already an elderly woman, seventy-three (73) years of age, unschooled
whether coercion was used in extracting their confessions; however, they answered
and illiterate. 26
in the negative. The accused cannot therefore on a later date make assertions that
they were maltreated when at no time during their detention and when they
were in the presence of persons who could have helped them did they make To further exculpate themselves, the accused invoked alibi. Ordoo testified that at
such complaints. the time of the incident he was at work in the place of Barangay Captain Valentin
Oriente, 27 while Medina claimed that he went to carry bananas for a certain aunt
Resurreccion. 28 However, such allegations deserve no credit as alibi becomes
The doctor who physically examined them further disproved their assertions when
worthless when it is established mainly by the accused themselves. 29 The defense
she testified thus
of alibi is always considered with suspicion and received with caution, not only
because it is inherently weak and unreliable, but also because it can easily be
FISCAL TECAN: fabricated. 30

Q: Now, you said that you talked with the prisoners, Pacito Ordoo and Quite interestingly, Bgy. Capt. Valentin Oriente was presented as a witness for the
Apolonio Medina, what did you actually tell them? prosecution, not for the defense, while "aunt Resurreccion" was not presented at
all. Bgy. Capt Oriente testified that Pacito Ordoo did not work with him on 2
August 1994; on the contrary, he saw him on the bridge at Sitio Guesset. 31
Other than their lame assertions that they were with the above-mentioned persons,
the accused failed to substantiate their defense and to give details on what
transpired that fateful day, especially since they were in the same town where the
crime happened. For alibi to prosper, it must be convincing enough to preclude any
doubt about the physical impossibility of the presence of the accused at the locus
criminis or its immediate vicinity at the time of the incident. 32 Since the accused
failed to convince the Court otherwise, their defense must fall.
The lack of prior design or plan to rape and kill the victim prior to the commission
of the crime does not negate conspiracy. For conspiracy to exist, proof of an actual
planning of the perpetration of the crime is not a condition precedent. It is
sufficient that at the time of the commission of the offense the accused had the
same purpose and were united in its execution. From the foregoing, it is evident
that the accused helped each other in carrying out their bestial acts. The taped
interview as played in open court clearly revealed thus
(STATEMENT OF ACCUSED APOLONIO MEDINA)
INTERPRETER:
When I was walking there already about to be near him, he was already holding
the woman and said, come and help me because I was (sic) not feeling well. Well,
I was shocked of what I saw, sir. But later on, as usual I regained my composure
and so I finally went to help him, sir.
FISCAL TECAN: We will continue, Your Honor.
INTERPRETER:
And then we laid her down among the bushes then Asing boxed her because she
was struggling, Your Honor. And Asing did what he wanted, sir. And then he
asked me to take my turn and then I went outside to look and see if there are (sic)
people and then Asing went to get a vine, sir. And when I arrived at their place, he
was already tieing (sic). After that, we left for home, sir. 3
xxx xxx xxx
(STATEMENT OF ACCUSED PACITO ORDOO)
Q: But Apolonio Medina was already there as your companion?
A: He was there already, sir. He was the one who held her legs, sir.
Q: Who was the first one to rape or use her?
A: Me, sir. and after that, Apolonio Medina, sir.
Q: And after you were through, what did you do, was she still conscious?
A: She was practically unconscious, sir.
Q: What did you do then?
A: We tied her neck and hanged her on a tree, sir. 34
The modifying circumstance of conspiracy being present, each of the accused shall
be liable for the other's acts as well. Article 335 of the Revised Penal Code
provides that "when by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death"
In 1971, in People v. Jose 35 this Court convicted the four (4) accused with forcible
abduction with rape, and three (3) counts of rape, and imposed upon each of the
accused four (4) death penalties in view of the existence of conspiracy.
In 1981, in People v. Yutila 36 this Court affirmed the judgment of the court a
quo declaring each of the three (3) accused guilty of the special complex crime of
rape with homicide and sentenced each of them to suffer a single penalty of death.
However, Justice Barredo in his separate opinion interposed that in accordance
with the doctrine laid down in the Jayme Jose case, three (3) death penalties should
have been imposed on each of the accused.
In People v. Vizcarra 37 where the four (4) accused were charged with rape with
homicide, the Court held that only one of them should be held liable for the crime
of rape with homicide and all the rest for simple rape. But since four (4) successive
offenses were charged and proved, each of the accused was imposed four (4) death
sentences for four (4) separate and distinct crimes of rape. The existence of
conspiracy among them, the overwhelming evidence as to the nature and the
number of crimes committed, as well as the attendance of the aggravating
circumstances, fully justified the imposition of four (4) death penalties.
In 1988, in People v. Dio 38 where the three (3) accused took turns in ravishing
the victim and thereafter killed her, the Court declared each of them guilty of three
(3) crimes of rape with homicide and sentenced each of them to three (3) penalties
of reclusion perpetua. The penalty in fact should have been death but with its
proscription in the 1987 Constitution the penalty imposed was reduced
to reclusion perpetua.
In 1991, in People v. Flores 39 registered nurse was successively raped by four (4)
men and then killed. The trial court convicted each of them with the special
complex crime of multiple rape with homicide on four (4) counts and as a
consequence thereof sentenced each of them to four (4) death penalties. This Court
affirmed the decision of the lower court with the modification that the accused
should instead suffer four (4) penalties of reclusion perpetuaby reason of the
constitutional proscription on the imposition of the death penalty. The four (4)
death penalties for each of the appellants were explained to be ordained by the fact
that conspiracy had been established beyond reasonable doubt.
In consonance with Sec. 25 of RA 7659 amending Art. 83 of the Revised Penal
Code, upon finality of this Decision, let the records of this case be forthwith
forwarded to the Office of the President for the possible exercise of his pardoning
power.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ., concur.
EN BANC

In 1996, in People v. Laray 40 this Court convicted two (2) of the accused charged
G.R. No. 145566 March 9, 2004
therein with multiple rape and sentenced each of them to suffer two (2) counts
of reclusion perpetua because of the existence of conspiracy.
PEOPLE OF THE PHILIPPINES, appellee,
vs.
Accordingly, herein accused Pacito Ordoo and Apolonio Medina should be held DINDO "BEBOT" MOJELLO, appellant.
liable for the special complex crime of rape with homicide on two (2) counts as
defined and penalized in Art. 335 of the Revised Penal Code as amended by RA
7659.

We have held that the indemnification of the victim shall be in the amount of
P100,000.00 if the crime of rape is committed or effectively qualified by any of
the circumstances under which the death penalty is authorized by the applicable
amendatory laws. 41 In addition, this Court has likewise ruled that in crimes of rape
the amount of P50,000.00 as moral damages must be awarded to the victim
without need of proof nor even pleading the basis thereof. 42
Four (4) Justices of the Court however continue to maintain the unconstitutionality
of RA 7659 insofar as it prescribed the death penalty; nevertheless, they submit to
the ruling of the majority to the effect that the law is constitutional and that the
death penalty can be lawfully imposed in the case at bar.
WHEREFORE, the 11 December 1997 Judgment rendered by the Regional Trial
Court-Branch 34, Balaoan, La Union, as AFFIRMED with the MODIFICATION
that the two (2) accused PACITO ORDOO y NEGRANZA alias ASING and
APOLONIO MEDINA y NOSUELO alias POLING are held guilty beyond
reasonable doubt of the special complex crime of rape with homicide on two (2)
counts and are sentenced each to two (2) DEATH PENALTIES. Each of the
accused is further ordered to indemnity the heirs of Shirley Victore in the amount
of P200,000.00 as civil indemnity and P100,000.00 for moral damages for both
counts of rape. Cost against both accused.
DECISION
YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court (RTC) of Bogo,
Cebu, Branch 61, finding appellant Dindo "Bebot" Mojello guilty beyond
reasonable doubt of the crime of rape with homicide defined and penalized under
Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentencing him to the supreme penalty of death.1
Appellant Dindo Mojello, alias "Bebot" was charged with the crime of rape with
homicide in an Information dated May 22, 1997, as follows: 2
That on the 15th day of December 1996, at about 11:00 o'clock in the
evening, at Sitio Kota, Barangay Talisay, Municipality of Santa Fe,
Province of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, moved by lewd design and
 by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously succeed in having carnal knowledge with
Lenlen Rayco under twelve (12) years of age and with mental deficiency,
against her will and consent, and by reason and/or on the occasion
thereof, purposely to conceal the most brutal act and in pursuance of his
criminal design, the above-named accused, did then and there willfully,
unlawfully and feloniously with intent to kill, treacherously and
employing personal violence, attack, assault and kill the victim Lenlen
Rayco, thereby inflicting upon the victim wounds on the different parts of
her body which caused her death.
CONTRARY TO LAW.
Appellant was arraigned on July 24, 1997, entering a plea of "not guilty." Trial
followed.
On January 21, 1999, the trial court rendered judgment finding appellant guilty
beyond reasonable doubt of the crime of rape with homicide, and sentencing him
to suffer the death penalty.
From the facts found by the court a quo, it appears that on December 15, 1996, at
or around 9:00 p.m., Rogelio Rayco was having some drinks with a group which
included Roger Capacito and his wife and the spouses Borah and Arsolin
Illustrismo at the Capacito residence located at Barangay Talisay, Sta. Fe, Cebu. 3
Rogelio Rayco left the group to go home about an hour later. On his way home, he
saw his niece, Lenlen Rayco, with appellant Dindo Mojello, a nephew of Roger
Capacito, walking together some thirty meters away towards the direction of Sitio
Kota.4 Since he was used to seeing them together on other occasions, he did not
find anything strange about this. He proceeded to his house.5
On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco family was
informed that the body of Lenlen was found at the seashore of Sitio Kota. Rogelio
Rayco immediately proceeded to the site and saw the lifeless, naked and bruised
body of his niece. Rogelio was devastated by what he saw. A remorse of
conscience enveloped him for his failure to protect his niece. He even attempted to
take his own life several days after the incident.6
Appellant was arrested at Bantayan while attempting to board a motor launch
bound for Cadiz City. On an investigation conducted by SPO2 Wilfredo Giducos,
he admitted that he was the perpetrator of the dastardly deed. Appellant was
assisted by Atty. Isaias Giduquio during his custodial interrogation. His confession
was witnessed by Barangay Captains Wilfredo Batobalanos and Manolo Landao.
Batobalanos testified that after it was executed, the contents of the document were
read to appellant who later on voluntarily signed it.7 Appellant's extrajudicial
confession was sworn before Judge Cornelio T. Jaca of the Municipal Circuit Trial
Court (MCTC) of Sta. Fe-Bantayan.8 On December 21, 1996, an autopsy was
conducted on the victim's cadaver by Dr. Nestor Sator of the Medico-Legal Branch
of the PNP Crime Laboratory, Region VII.9
Dr. Sator testified that the swelling of the labia majora and hymenal lacerations
positively indicate that the victim was raped.10 He observed that froth in the lungs
of the victim and contusions on her neck show that she was strangled and died of
asphyxia.11 He indicated the cause of death as cardio-respiratory arrest due to
asphyxia by strangulation and physical injuries to the head and the trunk. 12
In this automatic review, appellant raises two issues: whether the extrajudicial
confession executed by appellant is admissible in evidence; and whether appellant
is guilty beyond reasonable doubt of the crime of rape with homicide.
We now resolve.
Appellant alleges that the lower court gravely erred in admitting in evidence the
alleged extrajudicial confession which he executed on December 23, 1996. In his
Brief, appellant avers that the confession which he executed was not freely,
intelligently and voluntarily entered into.13 He argues that he was not knowingly
and intelligently apprised of his constitutional rights before the confession was
taken from him.14 Hence, his confession, and admissions made therein, should be
deemed inadmissible in evidence, under the fruit of the poisonous tree doctrine.
We are not convinced.
At the core of the instant case is the application of the law on custodial
investigation enshrined in Article III, Section 12, paragraph 1 of the Constitution,
which provides:
Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence
of counsel.
The above provision in the fundamental Charter embodies what jurisprudence has
termed as "Miranda rights" stemming from the landmark decision of the United
States Supreme Court, Miranda v. Arizona.15 It has been the linchpin of the
modern Bill of Rights, and the ultimate refuge of individuals against the coercive
power of the State.
The Miranda doctrine requires that: (a) any person under custodial investigation
has the right to remain silent; (b) anything he says can and will be used against
him in a court of law; (c) he has the right to talk to an attorney before being
questioned and to have his counsel present when being questioned; and (d) if he
cannot afford an attorney, one will be provided before any questioning if he so
desires.
In the Philippines, the right to counsel espoused in the Miranda doctrine was based
on the leading case of People v. Galit16 and Morales, Jr. v. Enrile,17 rulings
subsequently incorporated into the present Constitution. The Mirandadoctrine
under the 1987 Charter took on a modified form where the right to counsel was
specifically qualified to mean competent and independent counsel preferably of
the suspect's own choice. Waiver of the right to counsel likewise provided for
stricter requirements compared to its American counterpart; it must be done in
writing, and in the presence of counsel.
Verily, it may be observed that the Philippine law on custodial investigation has
evolved to provide for more stringent standards than what was originally laid
out in Miranda v. Arizona. The purpose of the constitutional limitations on police
interrogation as the process shifts from the investigatory to the accusatory seems to
be to accord even the lowliest and most despicable criminal suspects a measure of
dignity and respect. The main focus is the suspect, and the underlying mission of
custodial investigation to elicit a confession.
The extrajudicial confession executed by appellant on December 23, 1996,
applying Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No.
7438, Sec. 2 complies with the strict constitutional requirements on the right to
counsel. In other words, the extrajudicial confession of the appellant is valid and
therefore admissible in evidence.
As correctly pointed out by the Solicitor General, appellant was undoubtedly
apprised of his Miranda rights under the Constitution.18 The court a quo observed
that the confession itself expressly states that the investigating officers informed
him of such rights.19 As further proof of the same, Atty. Isaias Giduquio testified
that while he was attending a Sangguniang Bayan session, he was requested by the
Chief of Police of Sta. Fe to assist appellant.20 Appellant manifested on record his
desire to have Atty. Giduquio as his counsel, with the latter categorically stating
that before the investigation was conducted and appellant's statement taken, he
advised appellant of his constitutional rights. Atty. Giduquio even told appellant to
answer only the questions he understood freely and not to do so if he was not sure
of his answer.21 Atty. Giduquio represented appellant during the initial stages of
the trial of the present case.
Atty. Giduquio was a competent and independent counsel of appellant within the
contemplation of the Constitution. No evidence was presented to negate his
competence and independence in representing appellant during the custodial
investigation. Moreover, appellant manifested for the record that Atty. Giduquio
was his choice of counsel during the custodial proceedings.
The phrase "preferably of his own choice" does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to preclude other
equally competent and independent attorneys from handling the defense; otherwise
the tempo of custodial investigation will be solely in the hands of the accused who
can impede, nay, obstruct the progress of the interrogation by simply selecting a
lawyer who, for one reason or another, is not available to protect his interest.22
We ruled in People v. Continente23 that while the choice of a lawyer in cases where
the person under custodial interrogation cannot afford the services of counsel or
where the preferred lawyer is not available is naturally lodged in the police
investigators, the suspect has the final choice as he may reject the counsel chosen
for him and ask for another one. A lawyer provided by the investigators is deemed
engaged by the accused when he does not raise any objection against the counsel's
appointment during the course of the investigation, and the accused thereafter
subscribes to the veracity of the statement before the swearing officer. 24
The right to counsel at all times is intended to preclude the slightest coercion as
would lead the accused to admit something false. The lawyer, however, should
never prevent an accused from freely and voluntarily telling the truth. In People v.
Dumalahay,25 this Court held:
The sworn confessions of the three accused show that they were properly
apprised of their right to remain silent and right to counsel, in accordance
with the constitutional guarantee.
At 8:00 in the morning of the next day, the three accused proceeded to the
office of Atty. Rexel Pacuribot, Clerk of Court of the Regional Trial
Court of Cagayan de Oro City. All of the three accused, still accompanied
by Atty. Ubay-ubay, subscribed and swore to their respective written
confessions. Before administering the oaths, Atty. Pacuribot reminded the
three accused of their constitutional rights under the Miranda doctrine and
verified that their statements were voluntarily given. Atty. Pacuribot also
translated the contents of each confession in the Visayan dialect, to
ensure that each accused understood the same before signing it.
 No ill-motive was imputed on these two lawyers to testify falsely against
the accused. Their participation in these cases merely involved the
performance of their legal duties as officers of the court. Accused-
appellant Dumalahay's allegation to the contrary, being self-serving,
cannot prevail over the testimonies of these impartial and disinterested
witnesses.
More importantly, the confessions are replete with details which could
possibly be supplied only by the accused, reflecting spontaneity and
coherence which psychologically cannot be associated with a mind to
which violence and torture have been applied. These factors are clear
indicia that the confessions were voluntarily given.
When the details narrated in an extrajudicial confession are such that they
could not have been concocted by one who did not take part in the acts
narrated, where the claim of maltreatment in the extraction of the
confession is unsubstantiated and where abundant evidence exists
showing that the statement was voluntarily executed, the confession is
admissible against the declarant. There is greater reason for finding a
confession to be voluntary where it is corroborated by evidence aliunde
which dovetails with the essential facts contained in such confession.
The confessions dovetail in all their material respects. Each of the
accused gave the same detailed narration of the manner by which
Layagon and Escalante were killed. This clearly shows that their
confessions could not have been contrived. Surely, the three accused
could not have given such identical accounts of their participation and
culpability in the crime were it not the truth.
Concededly, the December 17, 1996 custodial investigation upon appellant's
apprehension by the police authorities violated the Miranda doctrine on two
grounds: (1) no counsel was present; and (2) improper waiver of the right to
counsel as it was not made in writing and in the presence of counsel. However, the
December 23, 1996 custodial investigation which elicited the appellant's
confession should nevertheless be upheld for having complied with Art. III, Sec.
12, par. 1. Even though improper interrogation methods were used at the outset,
there is still a possibility of obtaining a legally valid confession later on by
properly interrogating the subject under different conditions and circumstances
than those which prevailed originally.26
The records of this case clearly reflect that the appellant freely, voluntarily and
intelligently entered into the extrajudicial confession in full compliance with
the Miranda doctrine under Art. III, Sec. 12, par. 1 of the Constitution in relation
to Rep. Act No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos, prior to conducting
his investigation, explained to appellant his constitutional rights in the Visayan
dialect, notably Cebuano, a language known to the appellant, viz:27
PASIUNA (PRELIMINARY) : Ikaw karon Dindo Mojello ubos sa usa ka
inbestigasyon diin ikaw gituhon nga adunay kalabutan sa kamatayon ni
LENLEN RAYCO ug nahitabong paglugos kaniya. Ubos sa atong
Batakang Balaod, ikaw adunay katungod sa pagpakahilom ning maong
inbesigasyon karon kanimo ug aduna usab ikaw ug katungod nga
katabangan ug usa ka abogado nga motabang karon kanimo ning maong
inbestigasyon. Imo ba nasabtan kining tanan? (DINDO MOJELLO, you
are hereby reminded that you are under investigation in which you were
suspected about the death and raping of LENLEN RAYCO. Under the
Constitution you have the right to remain silent about this investigation
on you now and you have also the right to have counsel of your own
choice to assist you in this investigation now. Have you understood
everything?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Human ikaw sayri sa imong katungod
ubos sa atong Batakang Balaod sa pagpakahilom, gusto ba nimo nga
ipadayon nato kining inbestigasyon karon kanimo? (After you have been
apprised of your rights under our Constitution to remain silent, do you
want to proceed this investigation on you now?)
TUBAG (QUESTION) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Gusto ba usab nimo ug abogado nga
makatabang kanimo ning maong inbestigasyon? (Do you want counsel to
assist you in this said investigation?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
APPEARANCE : Atty. Isaias Giduquio is appearing as counsel of the
affiant.
PANGUTANA (QUESTION) : Ako usab ikaw pahinumdoman nga unsa
man ang imo isulti karon dinhi magamit pabor o batok kanimo sa
Hukmanan, nasabtan ba nimo kining tanan mo nga mga katungod nga
walay naghulga, nagpugos o nagdagmal kanimo o nagsaad ba ug ganti
sa kaulihan? (You are also hereby reminded that all your statements now
will be used as evidence against or in your favor in any court of justice.
 Have you understood all your rights with nobody coercing or forcing you,
or mauling or promising a reward in the end?)
TUBAG (ANSWER) : Oo (Yes.)
PANGUTANA (QUESTION) : Andam ka nga mohatag ug libre ug
boluntaryo nga pamahayag? (Are you now ready to give your free and
voluntary statement?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
xxx xxx xxx
(START OF CUSTODIAL INVESTIGATION)
xxx xxx x x x.
The trial court observed that as to the confession of appellant, he was fully
apprised of his constitutional rights to remain silent and his right to counsel, as
contained in such confession.28 Appellant was properly assisted by Atty. Isaias
Giduquio. The extrajudicial confession of appellant was subscribed and sworn to
before Judge Cornelio T. Jaca, Municipal Judge of Medellin-Daanbantayan and
acting Judge of MCTC Sta. Fe-Bantayan and Madredijos. Judge Jaca declared that
he explained to the appellant the contents of the extrajudicial confession and asked
if he understood it. He subsequently acknowledged that when appellant subscribed
to his statement, Atty. Giduquio, witness Batobalonos and his Clerk of Court were
present as well as other people.29
The extrajudicial confession executed by the appellant followed the rigid
requirements of the Miranda doctrine; consequently, it is admissible as evidence.
The lower court was correct in giving credence to the extrajudicial confession of
the appellant.
On cross-examination, appellant Mojello claimed his life was threatened, thereby
inducing him to execute an extrajudicial confession, yet he neither filed any case
against the person who threatened him, nor he report this to his counsel. He
further claimed that he did not understand the contents of the confession which
was read in the Visayan dialect, yet he admits that he uses the Visayan dialect
in his daily discourse.
In People v. Pia,30 we held that "where appellants did not present evidence of
compulsion or duress or violence on their persons; where they failed to complain
to officers who administered the oaths; where they did not institute any criminal or
administrative action against their alleged maltreatment; where there appears no
marks of violence on their bodies and where they did not have themselves
examined by a reputable physician to buttress their claim, all these should be
considered as factors indicating voluntariness of confessions." The failure of the
appellant to complain to the swearing officer or to file charges against the persons
who allegedly maltreated him, although he had all the chances to do so, manifests
voluntariness in the execution of his confessions.31 To hold otherwise is to
facilitate the retraction of his statements at the mere allegation of threat, torture,
coercion, intimidation or inducement, without any proof whatsoever. People v.
Enanoria further declared that another indicium of voluntariness is the disclosure
of details in the confession which could have been known only to the declarant.32
The confessant bears the burden of proof that his confession is tainted with duress,
compulsion or coercion by substantiating his claim with independent evidence
other than his own self-serving claims that the admissions in his affidavit are
untrue and unwillingly executed.33 Bare assertions will certainly not suffice to
overturn the presumption.34
The test for determining whether a confession is voluntary is whether the
defendant's will was overborne at the time he confessed.35 In cases where
the Miranda warnings have been given, the test of voluntariness should be
subsequently applied in order to determine the probative weight of the confession.
Accordingly, the presumption of voluntariness of appellant's confession remains
unrebutted by his failure to present independent evidence that the same was
coerced.
It cannot be gainsaid that the constitutional duty of law enforcement officers is to
ensure that a suspect has been properly apprised of his Miranda rights, including
the right to counsel. It is in the paramount public interest that the foundation of an
effective administration of criminal justice relies on the faithful adherence to
the Miranda doctrine. Compliance with Art. III, Sec. 12, par. 1 by police
authorities is central to the criminal justice system; Miranda rights must in every
case be respected, without exception.
Thus, the confession, having strictly complied with the constitutional requirements
under Art. III, Sec. 12, par. 1, is deemed admissible in evidence against appellant.
It follows that the admission of culpability made therein is admissible. It is
therefore not "fruit of the poisonous tree" since the tree itself is not poisonous.
Appellant also alleges that the lower court gravely erred in holding him guilty
beyond reasonable doubt of the crime of rape with homicide, thereby sentencing
him to suffer the death penalty despite the glaring insufficiency of circumstantial
evidence against him. In his Brief, he argues that the evidence against him is
insufficient to warrant his conviction of rape with homicide.
The categorical admission of the appellant to the crime of rape, coupled with
the corpus delicti as established by the Medico-Legal Report and the testimony of
Rogelio Rayco, leads us to no other conclusion than that of appellant's guilt for the
rape of Lenlen Rayco on December 15, 1996. It passes the test of moral certainty
and must therefore be sustained.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Bogo, Cebu, Branch 61 in Criminal Case No. B-00224 is AFFIRMED with
MODIFICATION. Appellant Dindo Mojello is found guilty beyond reasonable
doubt of the crime of statutory rape and sentenced to suffer the penalty of
reclusion perpetua. He is also ordered to pay the heirs of the victim, Lenlen Rayco,
P50,000.00 as civil indemnity and P50,000.00 as moral damages.
Costs de oficio.

However, the records do not adequately show that appellant admitted to killing the SO ORDERED.
victim. Neither is the circumstantial evidence sufficient to establish that by reason
or on the occasion of the rape a homicide was committed by the appellant. The Davide, Jr., C.J., Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
lack of physical evidence further precludes us from connecting the slaying of the Morales, Callejo, Sr., and Azcuna,
victim to her sexual assault, given the quantum of proof required by law for
conviction. No estimated time of death was given, which is essential in making a
FIRST DIVISION
connection with the appellant's story that he went home after a night of drinking.
The time when he and the victim were headed towards the seashore at or about
9:00 to 10:00 p.m. of December 15, 1996 until the time when the victim's lifeless G.R No. 134056 July 6, 2000
body was found at or about 4:00 a.m. of December 16, 1996 had a time variance of
between six to seven hours. Although the circumstances may point to the appellant PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
as the most likely perpetrator of the homicide, the same do not constitute an vs.
unbroken chain of events which would lead us to a reasonable conclusion that ROBERT FIGUEROA and BEATRICE VALERIO, accused.
appellant was guilty of killing the victim. In other words, there are gaps in the ROBERT FIGUEROA, accused-appellant.
reconstruction of facts and inferences surrounding the death of Lenlen. Appellant
only admitted to boxing the victim when she shouted, then hurriedly ran away. The DECISION
cause of death of Lenlen was cardio-respiratory attack due to asphyxiation and
physical injuries; she was strangled to death and left on the seashore as manifested DAVIDE, JR., C.J.:
by the frothing in her lungs. No physical, scientific or DNA evidence was
presented to pinpoint appellant as the person who killed the victim. Fingerprints, if
Accused-appellant ROBERT FIGUEROA (hereafter OBET) appeals from the 18
available, would have determined who committed the homicide. Thus, appellant
May 1998 Decision1 of the Regional Trial Court of Paraaque City, Branch 259, in
cannot be convicted of rape with homicide considering the insufficiency of
Criminal Case No. 97-306, convicting him of violation of Section 14-A2, Article
evidence which thereby created a reasonable doubt as to his guilt for the said
III of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
special complex crime.
amended by RA. No. 7659. His co-accused Beatrice Valerio (hereafter Betty) was
acquitted.
Appellant should instead be held liable only for the crime of statutory rape, the
victim Lenlen Rayco being then eleven years old. The sexual assault was
OBET and Betty were indicted under an information, dated 2 April 1997, whose
necessarily included in the special complex crime charged in the Information dated
accusatory portion reads as follows:
May 22, 1997.

That on 16 February 1997 and for sometime prior thereto in Paraaque City and
The trial court should have awarded damages to the heirs of the victim. Civil
within the jurisdiction of this Honorable Court, the above-named accused without
indemnity in the amount of P50,000.00 is awarded upon the finding of the fact of
authority of law, conspiring, confederating and helping one another, did then and
rape.36 Moral damages in the amount of P50,000.00 may likewise be given to the
there, wilfully, unlawfully and feloniously manufacture, produce, prepare or
heirs of the victim without need of proof in accordance with current
process methamphetamine hydrochloride or shabu, a regulated drug amounting to
jurisprudence.37
a 2.4 liters, directly by means of chemical synthesis.
CONTRARY TO LAW.3
When arraigned OBET and Betty each entered a plea of not guilty. 4 Trial on the
merits then ensued.
The witnesses presented by the prosecution were NBI Forensic Chemist Mary Ann
T. Aranas, NBI Special Investigator III Pio M. Palencia (hereafter PALENCIA),
and NBI Intelligence Agent II Martin Soriano (hereafter SORIANO).
PALENCIA testified that on 15 February 1997, he was in the office of SORIANO
at Project 6, Quezon City, when they received a call from their informant, a
woman, who reported that a certain OBET was allegedly engaged in large-scale
drug trafficking in Makati City. PALENCIA and SORIANO forthwith instructed
their informant to establish contact with OBET for a buy-bust operation. After
several hours, the informant reported that OBET was already waiting for her at No.
1485 Soliman Street, Makati City, with instructions for her to come alone as soon
as she was ready with P150,000. PALENCIA then caused the dusting of
fluorescent powder over ten pieces of authentic P100 bills as buy-bust money and
gave them to the informant.5
On board a taxi, PALENCIA, SORIANO and their informant proceeded to the
rendezvous area. They arrived at half past twelve o'clock in the early morning of
16 February 1997. As the gate was already open, the informant entered the
premises, while PALENCIA and SORIANO discreetly crawled and positioned
themselves near the gate of the house. Strategically positioned, PALENCIA
overheard OBET ask the informant whether she had the money. PALENCIA then
saw the informant hand over the money to OBET. While counting the money,
OBET sensed the presence of other people in the area. OBET, who was in
possession of a .45 caliber pistol, fired it twice toward the direction of
PALENCIA, while hurrying towards the house. OBET then held hostage his
mistress, Estrella Brilliantes, and her two children for the next three hours until the
arrival of one Major Roberto Reyes to whom OBET surrendered. PALENCIA and
SORIANO brought OBET, his firearm and the recovered buy-bust money to the
WPD Headquarters for recording purposes and, thereafter, to the NBI
Headquarters.6
At the NBI Headquarters, PALENCIA and SORIANO methodically interrogated
OBET about the source of his shabu. OBET eventually volunteered that his source
was a certain Betty of 263 El Grande Street, B.F. Homes, Paraaque City.
PALENCIA and SORIANO took OBET to Betty's house as a follow-up operation.
They arrived at around 6:00 a.m. of the same day, 16 February 1997. As OBET
called Betty earlier to tell her that he was arriving, Betty already had the gate
opened for them. After parking, PALENCIA saw Betty waiting for them. Upon
seeing OBET in handcuffs, Betty asked what happened. OBET replied that he was
just caught in a buy-bust operation. PALENCIA and SORIANO then tried to
convince Betty to surrender the shabu that OBET insisted was hidden inside the
house. As Betty persistently denied the existence of the shabu, PALENCIA told
OBET to confer with Betty. After a while, OBET proceeded to the kitchen of the
guesthouse located outside the main house, followed by Betty. OBET then
promptly pointed to what he termed as liquid shabu inside a white pail along with
other drug paraphernalia, such as a beaker spray. PALENCIA and
SORIANO seized the items.7
Thereafter, PALENCIA requested a laboratory examination of all the seized items
and an ultraviolet light examination over the persons of OBET, Betty and a certain
Eva Baluyot.8 PALENCIA claimed that based on the certification issued by the
Forensic Chemistry Division of the NBI, all the items seized from Betty's
residence were positive for methamphetamine hydrochloride except specimen
no.7; while from among the persons subjected to ultraviolet light examination,
only OBET was found positive for fluorescent powder. 9
On cross-examination, PALENCIA admitted that he and SORIANO conducted the
search without a search warrant, but with the consent of Betty.10 He also admitted
that he did not actually see OBET or Betty in the act of manufacturing shabu. 11
NBI Intelligence Agent II SORIANO corroborated PALENCIA's testimony. He
likewise admitted that the custodial investigation of OBET, during which he
divulged Betty as the source of shabu, was conducted in the absence of any
counsel. SORIANO also confirmed PALENCIA's testimony that they were not
armed with a search warrant, but that they conducted the follow-up operation at
Betty's house under the hot pursuit theory.12 He further maintained that OBET,
after conferring with Betty, uttered, "Ako na nga, ako na nga"(I will do it, I will do
it). OBET then proceeded to the dirty kitchen, pointed to the refrigerator and had it
moved. Thereafter, SORIANO saw a plastic pail containing liquid with floating
brown substances.
SORIANO admitted that he and PALENCIA neither witnessed OBET and Betty
manufacture shabu in the manner described in Section 2(j) of the Dangerous Drugs
Act13 ; nor did they possess evidence, independent of the items they had seized,
that OBET and Betty were engaged in the labeling or manufacturing of shabu.14
Forensic Chemist Mary Ann T. Aranas testified that on 16 February 1997, she
conducted a laboratory examination for the presence of any prohibited or regulated
drug on eleven different specimens (Exhibits "B"-"L").15 The result of the
examination disclosed that all the specimens except specimen no. 7 (Exhibit "H")
were positive for methamphetamine hydrochloride. 16 She further observed that
specimen no. 8 (Exhibit I- I-2), the brown liquid with floating solid flakes
contained in a plastic pail, was positive for epedrine, 17 a substance used in the
manufacture of methamphetamine hydrochloride. She opined that this crude form
of shabu would have to undergo chemical processes, like extraction,
crystallization, distillation, before it could be finally converted into shabu's
crystalline form. She also conducted a fluorescent powder examination over the
persons of OBET and Betty. Only OBET gave a positive result.18
On the other hand, OBET testified that while he was watching television on the
night of 15 February 1997, he heard the doorbell rang. Upon seeing Eva Baluyot,
his childhood friend, he opened the door for her. Inside the house, Eva handed him
a bundle of money and stated that she was buying shabu from him. OBET
emphatically told Eva that he was not engaged in such illegal trade and returned
the money. OBET then accompanied Eva out of the house. At the garage, OBET
noticed someone peeping from the dark; so he told Eva to go back inside the house
with him. Eva ignored the request. OBET thus left Eva at the garage and got
his .45 caliber gun from his house. While he was locking the door, his handgun
accidentally fired off, as he forgot that it had already been cocked. This blast was
followed by shouts of people outside claiming that they were NBI men. Uncertain,
OBET did not go out of the house but instead told the alleged NBI men to call the
Makati Police, specifically Major Reyes. The NBI agents, however, persisted in
convincing OBET to go out of the house. He did get out of his house after three
hours when he heard the voice of Major Reyes. OBET gave to Major Reyes his
gun. The Makati Police and the NBI men thereafter conducted a joint search inside
OBET's house which, however, yielded nothing. OBET was then brought to the
Makati Police Headquarters where the incident was recorded. Thereafter,
PALENCIA, SORIANO and another NBI man brought OBET to the house of
Betty, his former live-in partner, at El Grande Street, B.F. Homes, Paraaque City,
upon the insistence and information of Eva Baluyot.19
Upon entering B.F. Homes, SORIANO instructed OBET to call and tell Betty that
he was already near. The gate was already opened when they arrived, and the NBI
men freely parked their car at the garage. Then, PALENCIA and SORIANO
alighted from the car and entered Betty's house. OBET was left in the car under the
charge of the third NBI man; hence, he knew nothing of what happened inside
Betty's house.20
For her part, Betty admitted that she was romantically involved with OBET and
had a child by him. She recalled that on 16 February 1997, OBET called at around
6:00 a.m. and requested her to open the gate for him, as he was already near. She
ran down to the garage and opened the gate. Since her car was parked halfway
through the garage, she went to the main house to get her car keys to make way for
OBET's car. But as she came out of the main house, OBET's car was already
parked inside the garage. She noticed that OBET had two companions with long
firearms. The two, whom Betty later found out as NBI men PALENCIA and
SORIANO, informed her that they had just come from a buy-bust operation and
that OBET had led them to her house, as there were illegal chemicals kept in the
premises. Shocked andamazed, she then asked for a search warrant, but the NBI
men could not produce any.21
Betty further recalled that the NBI men claimed that they found contraband items
near the dirty kitchen at a small space behind the refrigerator where cases of
softdrinks were stored. Betty denied any knowledge that there were illegal
chemicals inside her house and that these were manufactured into shabu. She also
denied knowing Eva Baluyot.22
On cross-examination, Betty disclaimed her alleged consent to the search of her
house, for she specifically asked the NBI men for a search warrant. She asserted
that she did not see the NBI men find the shabu paraphernalia because she went up
to the second floor of her house. She only saw that the NBI men were bringing
several items out of her house.23
The trial court agreed with the prosecution's theory that the warrantless arrests of
OBET and Betty were conducted within the purview of valid warrantless arrests
enumerated in Section 5,24 Rule 113 of the Rules of Court. It then ruled as valid the
consented warrantless search conducted at the house of Betty. Consequently, it
found that the very items seized by the NBI agents at the kitchen of Betty's
guesthouse were admissible as the corpus delicti of the violation of Section 14-A
of the Dangerous Drugs Act. Thus, the trial court "believed" that the paraphernalia
seized were indispensable to the processing or manufacturing of shabu into
crystallized form. Although it conceded that the prosecution witnesses did not
actually see the crystallization processes, the trial court observed that the
Dangerous Drug Act does not require that there be actual manufacturing activities
at the time of the seizure.
The trial court, however, acquitted Betty for failure of the prosecution to adduce
evidence that she, in conspiracy with OBET, manufactured shabu without the
requisite authority. It did not arrive at a similar conclusion as far as OBET was
concerned, but declared that based on the evidence on record, OBET's guilt of the
crime charged was proved beyond reasonable doubt. Thus, in the decision of 18
May 1998 the trial court decreed as follows:
WHEREFORE, finding the evidence insufficient to warrant the conviction of
accused Beatrice Valerio y del Rosario for Violation of Sec. 14-a of Article III of
R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT GUILTY
and considering that she is detained at the NBI the NBI is directed to immediately
release her from custody unless there be some reasons for her detention. Finding,
however, accused Robert Figueroa GUILTY as charged [of] the same offense in
the absence of any mitigating or aggravating circumstances, this Court hereby
sentences him to suffer the penalty of Reclusion Perpetua and to pay a fine of
P500,000.00 and to suffer the accessory penalties provided by law, specifically
Art. VI [sic] of the Revised Penal Code.
The Clerk of Court is directed to prepare the Mittimus for the immediate transfer
of Robert Figueroa to the Bureau of Corrections in Muntinlupa City.
SO ORDERED.
Unsatisfied with the verdict, OBET appealed the decision to us. He principally
premises his prayer for acquittal on the failure of the State to show by convincing
evidence that shortly prior to or during custodial investigation, he was apprised of
his constitutional rights to remain silent, to have a competent and independent
counsel preferably of his own choice, and to be informed of such rights. He asserts
that he did not waive those rights. Thus, whatever admissions were allegedly
extracted from him are inadmissible in evidence. Even assuming that his
extrajudicial statements were admissible, Betty's acquittal would work in his favor
because the indictment is based on conspiracy. In a conspiracy, the act of one is
the act of all. Therefore, the acts imputed to him were also the acts of Betty, and
vice versa. Since the trial court considered insufficient for conviction the acts of
Betty, then he, too, should be acquitted.
In the Appellee's Brief, the Office of the Solicitor General (OSG) maintains that
not all warrantless searches and seizures are illegal. For one, a warrantless search
and seizure is not unreasonable and offensive to the Constitution if consent is
shown. In this case, the prosecution convincingly proved that Betty consented to
the search of her house. With her consent, Betty validly waived her constitutional
right against unreasonable searches and seizure. Consequently, the items seized in
her house by virtue of the consented search are admissible in evidence against her
and OBET.
The OSG also contends that the acquittal of Betty does not per se work to absolve
OBET of the crime charged. Betty's believable disavowal of the location of the
paraphernalia and other circumstances on record reasonably indicative of her
innocence cannot redound in favor of OBET. The latter apparently knew the exact
location of the hidden paraphernalia. By such disclosure, it is not far-fetched to
conclude that OBET had been actually engaged in the manufacture of shabu.
We first resolve the question of whether Betty's acquittal would benefit OBET.
We disagree with the theory of OBET that in an indictment based on conspiracy,
the acquittal of a conspirator likewise absolves a co-conspirator from criminal
liability. Indeed, the rule is well-settled that once a conspiracy is established, the
act of one is the act of all, and each of the conspirators is liable for the crimes
committed by the other conspirators.25 It follows then that if the prosecution fails
to prove conspiracy, the alleged conspirators should be held individually
responsible for their own respective acts. Accordingly, OBET's criminal liability in
this case must be judged on the basis of his own acts as established by the quantum
of proof required in criminal cases.
We should then determine whether the prosecution was able to establish beyond
reasonable doubt OBET's guilt for unauthorized manufacture of shabu, a regulated
drug.
After a meticulous review of the records and of the evidence adduced by the
parties in this case, we find that what PALENCIA and SORIANO did left much to
be desired, thereby resulting in a bungled prosecution of the case. The evidence for
the prosecution miserably failed to prove OBET's guilt of the offense charged.
The buy-bust operation was a failure because no shabu or other regulated or
prohibited drug was found in OBET's person and residence. No evidence was
adduced to show that OBET handed shabu over to the informant. Yet, he was
placed in custody. For what offense he was held in custody does not, initially,
appear very clear on the record.
It was established that OBET fired two shots toward the direction of PALENCIA
and SORIANO and held hostage his mistress and her two children. Yet he was not
placed under custodial investigation for such crimes as grave threats, coercion,
illegal possession of firearms, or crimes other than that with which he was
charged.
On the contrary, OBET was held in custody and investigated or interrogated about
the source of the shabu, none of which was found during the buy-bust operation. In
short he was held in custody as a consequence of the failed buy-bust operation and
as a follow-up to link him to the source and establish a conspiracy in the illegal
trade of shabu. Allegedly, he admitted that the source was Betty. On the basis of
that admission, PALENCIA and SORIANO, together with OBET, proceeded to
the residence of Betty. Needless to state, OBET cannot be investigated for
anything in relation to shabu while under custody without informing him of his
rights to remain silent and to have a competent and independent counsel preferably
of his own choice. Any waiver of such rights should be in writing and made in the
presence of a counsel pursuant to Section 12 (1) 26 , Article III of the Constitution.
It has been held that these rights attach from the moment the investigation
starts, i.e. when the investigating officers begin to ask questions to elicit
information and confessions or admissions from the suspect.27
It is always incumbent upon the prosecution to prove at the trial that prior to in-
custody questioning, the confessant was informed of his constitutional rights. The
presumption of regularity of official acts does not prevail over the constitutional
presumption of innocence.28 Hence, in the absence of proof that the arresting
officers complied with these constitutional safeguards, extrajudicial statements,
whether inculpatory or exculpatory, made during custodial investigation are
inadmissible and cannot be considered in the adjudication of a case. 29 In other
words, confessions and admissions in violation of Section 12 (1), Article III of
the Constitution are inadmissible in evidence against the declarant and more so
against third persons.30 This is so even if such statements are gospel truth and
voluntarily given.31 Such statements are useless except as evidence against the very
police authorities who violated the suspect's rights.32
SORIANO admitted that the custodial investigation of OBET was conducted
without the presence of a lawyer, and there is no proof that OBET waived said
right and the right to remain silent. No waiver in writing and in the presence of a
counsel was presented. Thus, pursuant to paragraph 3 of Section 12 of Article III
of the Constitution any admission obtained from OBET in the course of his
custodial investigation was inadmissible against him and cannot be used as a
justification for the search without a warrant.
The search conducted on Betty's house was allegedly consented to by Betty.
Indeed, a consented search is one of the exceptions to the requirement of a search
warrant. In People v. Chua Ho San @ Tsay Ho San,33 we pointed out that:
This interdiction against warrantless searches and seizures, however, is not
absolute and such warrantless searches and seizures have long been deemed
permissible by jurisprudence in instances of (1) search of moving vehicles, (2)
seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5)
stop and frisk situations (Terry search), and (6) search incidental to a lawful arrest.
The last includes a valid warrantless search and seizure pursuant to an equally
valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid warrant of arrest, the Rules of Court recognize permissible
warrantless arrest, to wit: (1) arrest flagrante delicto, (2) arrest effected in hot
pursuit, and (3) arrest of escaped prisoners.
In case of consented searches or waiver of the constitutional guarantee, against
obtrusive searches, it is fundamental that to constitute, a waiver, it must first
appear that (1) the right exists; (2) that the person involved had knowledge, either
actual or constructive, of the existence of such right; and (3) the said person had an
actual intention to relinquish the right.34 The third condition does not exist in the
instant case. The fact is, Betty asked for a search warrant, thus:
Q And of course, these NBI Special Investigators informed you of their purpose is
that correct?
A Yes sir.
Q And of course believing that there was nothing in your house you acceded?
A No sir, I was asking for a search warrant.
Q And what was their reply?
A They did not have any but that Figueroa had led them to the property. 35
Neither can the search be appreciated as a search incidental to a valid warrantless
arrest of either Betty or OBET as intimated by the trial court. First, Betty's arrest
did not precede the search. Second, per the prosecution's evidence OBET was not
arrested for possession or sale of regulated or prohibited drugs as a consequence of
the buy-bust operation. He surrendered after taking hostage Estrella and her two
children, although he was thereafter held in custody for further questioning on
illegal drugs.
There is no showing that the house occupied by Betty and the articles confiscated
therefrom belong to OBET. That OBET pointed to PALENCIA and SORIANO
the places where the articles were found provides no sufficient basis for a
conclusion that they belonged to him. Even if the articles thus seized actually
belonged to him, they cannot be constitutionally and legally used against him to
establish his criminal liability therefor, since the seizure was the fruit of an invalid
custodial investigation.
WHEREFORE, in view of all the foregoing, the 18 May 1998 Decision of the
Regional Trial Court, Branch 259, Paraaque City, convicting herein accused-
appellant Robert Figueroa of violation of Section 14-A, Article III of the
Dangerous Drugs Act, as amended, is hereby REVERSED and SET ASIDE. He is
hereby ACQUITTED of the crime charged, and ORDERED immediately released
from confinement or detention unless his continued detention is warranted by
virtue of a valid legal cause. The Director of the Bureau of Corrections is directed
to submit within five (5) days from receipt of a copy of this decision a report on
the release of accused-appellant.
Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO,
EPIFANIO PADUA and PATERNO PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
Jose W. Diokno for petitioners.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General
Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in
number, for their release from imprisonment. Meted out life terms for the complex
crime of rebellion with murder and other crimes, they would invoke the People v.
Hernandez1 doctrine, negating the existence of such an offense, a ruling that
unfortunately for them was not handed down until after their convictions had
become final. Nor is this the first instance, a proceeding of this character was
instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas
corpus, a similar question was presented. The answer given was in the negative.
Petitioners plead for a new look on the matter. They would premise their stand on
the denial of equal protection if their plea would not be granted. Moreover they did
invoke the codal provision that judicial decisions shall form part of the legal
system of the Philippines,3 necessarily resulting in the conclusion that the
Hernandez decision once promulgated calls for a retroactive effect under the
explicit mandate of the Revised Penal Code as to penal laws having such character
even if at the time of their application a final sentence has been rendered "and the
convict is serving the same."4 These arguments carry considerable persuasion.
Accordingly we find for petitioners, without going so far as to overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to
suffer reclusion perpetua for the complex crime of rebellion with multiple murder,
robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares
and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with
multiple murder and other offenses, and were similarly made to suffer the same
penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the
third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also
for the complex crime of rebellion with multiple murder and other offenses and on
January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has
been since then imprisoned by virtue of the above convictions. Each of them has
served more than 13 years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the
information against the accused in that case for rebellion complexed with murder,
arson and robbery was not warranted under Article 134 of the Revised Penal Code,
there being no such complex offense.7 In the recently-decided case of People vs.
Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea
of the Solicitor General for the abandonment of such doctrine. It is the contention
of each of the petitioners that he has served, in the light of the above, more than
the maximum penalty that could have been imposed upon him. He is thus entitled
to freedom, his continued detention being illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas
corpus proceeding prompted petitioners, as had been mentioned, to ask that it be
appraised anew and, if necessary, discarded. We can resolve the present petition
without doing so. The plea there made was unconvincing, there being a failure to
invoke the contentions now pressed vigorously by their counsel, Attorney Jose W.
Diokno, as to the existence of a denial of a constitutional right that would suffice
to raise a serious jurisdictional question and the retroactive effect to be given a
judicial decision favorable to one already sentenced to a final judgment under Art.
22 of the Revised Penal Code. To repeat, these two grounds carry weight. We have
to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus
under the circumstances disclosed. Its latitudinarian scope to assure that illegality
of restraint and detention be avoided is one of the truisms of the law. It is not
known as the writ of liberty for nothing. The writ imposes on judges the grave
responsibility of ascertaining whether there is any legal justification for a
deprivation of physical freedom. Unless there be such a showing, the confinement
must thereby cease. If there be a valid sentence it cannot, even for a moment, be
extended beyond the period provided for by law. Any deviation from the legal
norms call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights
provision" in the fundamental law. 10Nor is such praise unique. Cooley spoke of it
as "one of the principal safeguards to personal liberty." 11 For Willoughby, it is
"the greatest of the safeguards erected by the civil law against arbitrary and illegal
imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
echoed a similar sentiment, referring to it as "one of the most important bulwarks
of liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would
be of no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the defense of
liberty coupled with its limitations may be detected in the opinions of former Chief
Justices Arellano, 15 Avancea, 16 Abad Santos, 17 Paras, 18Bengzon, 19 and the
present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize
quite a few times the breadth of its amplitude and of its reach. In Villavicencio v.
Lukban, 21 the remedy came in handy to challenge the validity of the order of the
then respondent Mayor of Manila who, for the best of reasons but without legal
justification, ordered the transportation of more than 150 inmates of houses of ill-
repute to Davao. After referring to the writ of habeas corpus as having been
devised and existing "as a speedy and effectual remedy to relieve persons from
unlawful restraint" the opinion of Justice Malcolm continued: "The essential object
and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even
if presented in pleadings on their face devoid of merit was demonstrated in
Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm, stated:
"As standing alone the petition for habeas corpus was fatally defective in its
allegations, this court, on its motion, ordered before it the record of the lower court
in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice
Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the doctrine, one
that broadens the field of the operation of the writ, that a disregard of the
constitutional right to speedy trial ousts the court of jurisdiction and entitles the
accused if "restrained of his liberty, by habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the
matter thus: "The writ of habeas corpus is a high prerogative writ, known to the
common law, the great object of which is the liberation of those who may be
imprisoned without sufficient cause." Then there is this affirmation from an 1869
decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has
been for centuries esteemed the best and only sufficient defense of personal
freedom." The passing of the years has only served to confirm its primacy as a
weapon on in the cause of liberty. Only the other year, Justice Fortas spoke for the
United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state
action. ... The scope and flexibility of the writ its capacity to reach all manner
of illegal detention its ability to cut through barriers of form and procedural
mazes have always been emphasized and jealously guarded by courts and
lawmakers. The very nature of the writ demands that it be administered with the
initiative and flexibility essential to insure that miscarriages of justice within its
reach are surfaced and corrected." 29 Justice Fortas explicitly made reference to
Blackstone, who spoke of it as "the great and efficacious writ, in all manner of
illegal confinement." Implicit in his just estimate of its pre-eminent role is his
adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus
cuts through all forms and goes to the very tissue of the structure."
2. Where, however, the detention complained of finds its origin in what has been
judicially ordained, the range of inquiry in a habeas corpus proceeding is
considerably narrowed. For if "the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or judge or by virtue of
a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order," the writ
does not lie. 31 That principle dates back to 1902, 32 when this Court announced
that habeas corpus was unavailing where the person detained was in the custody of
an officer under process issued by a court or magistrate. This is understandable, as
during the time the Philippines was under American rule, there was necessarily an
adherence to authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional
defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision:
"The only ground on which this court, or any court, without some special statute
authorizing it, will give relief on habeas corpus to a prisoner under conviction and
sentence of another court is the want of jurisdiction in such court over the person
or the cause, or some other matter rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a
deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the
denial of equal protection. According to their petition: "In the case at bar, the
petitioners were convicted by Courts of First Instance for the very same rebellion
for which Hernandez, Geronimo, and others were convicted. The law under which
they were convicted is the very same law under which the latter were convicted. It
had not and has not been changed. For the same crime, committed under the same
law, how can we, in conscience, allow petitioners to suffer life imprisonment,
while others can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people
similarly situated were not similarly dealt with. What is required under this
required constitutional guarantee is the uniform operation of legal norms so that all
persons under similar circumstances would be accorded the same treatment both in
the privileges conferred and the liabilities imposed. As was noted in a recent
decision: "Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked upon in terms
of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the
rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued
incarceration after the twelve-year period when such is the maximum length of
imprisonment in accordance with our controlling doctrine, when others similarly
convicted have been freed, is fraught with implications at war with equal
protection. That is not to give it life. On the contrary, it would render it nugatory.
Otherwise, what would happen is that for an identical offense, the only distinction
lying in the finality of the conviction of one being before the Hernandez ruling and
the other after, a person duly sentenced for the same crime would be made to
suffer different penalties. Moreover, as noted in the petition before us, after our
ruling in People v. Lava, petitioners who were mere followers would be made to
languish in jail for perhaps the rest of their natural lives when the leaders had been
duly considered as having paid their penalty to society, and freed. Such a
deplorable result is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article
22 of the Revised Penal Code which requires that penal judgment be given a
retroactive effect. In support of their contention, petitioners cite U.S. v.
Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v.
Moran, 40 and People v. Parel. 41 While reference in the above provision is made
not to judicial decisions but to legislative acts, petitioners entertain the view that it
would be merely an exaltation of the literal to deny its application to a case like the
present. Such a belief has a firmer foundation. As was previously noted, the Civil
Code provides that judicial decisions applying or interpreting the Constitution, as
well as legislation, form part of our legal system. Petitioners would even find
support in the well-known dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it is
he who is truly the law-giver to all intents and purposes, and not the person who
first thought or spoke them." It is to be admitted that constitutional law scholars,
notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the
jurist John Chipman Gray, were much impressed with the truth and the soundness
of the above observations. We do not have to go that far though. Enough for
present purposes that both the Civil Code and the Revised Penal Code allow, if
they do not call for, a retroactive application.
It being undeniable that if the Hernandez ruling were to be given a retroactive
effect petitioners had served the full term for which they could have been legally
committed, is habeas corpus the appropriate remedy? The answer cannot be in
doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v.
Director of Prisons. 45Thus: "The courts uniformly hold that where a sentence
imposes punishment in excess of the power of the court to impose, such sentence
is void as to the excess, and some of the courts hold that the sentence is void in
toto; but the weight of authority sustains the proposition that such a sentence is
void only as to the excess imposed in case the parts are separable, the rule being
that the petitioner is not entitled to his discharge on a writ of habeas corpus unless
he has served out so much of the sentence as was valid." 46 There is a reiteration of
such a principle in Director v. Director of Prisons 47 where it was explicitly
announced by this Court "that the only means of giving retroactive effect to a
penal provision favorable to the accused ... is the writ of habeas corpus." 48 While
the above decision speaks of a trial judge losing jurisdiction over the case, insofar
as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the
only means of benefiting the accused by the retroactive character of a favorable
decision holds true. Petitioners clearly have thus successfully sustained the burden
of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that
petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex
crime of rebellion with multiple murder and other crimes, and have served or are
now entering into their 17th year of imprisonment, save for petitioner Epifanio
Padua who was sentenced on December 15, 1955 and is completing his 15th year
of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life
sentences for the same charge by the Court of First Instance of Manila had their
sentences reduced last near to ten years of prision mayor by the Court in People v.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956
in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with
other common crimes since such common crimes "assume the political
complexion of the main crime of which they are mere ingredients and
consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court
rejected therein the State's plea for the reexamination and setting aside of such
doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a
very serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to adhere to
what this Court said in that case." The said leaders have since been duly freed as
having served out their penalty, but their followers, herein petitioners, are still
serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that
"(W)ith reference to persons in custody pursuant to a final judgment, the rule is
that the writ of habeas corpus can issue only for want of jurisdiction of the
sentencing court, and cannot function as a writ of error." "I grant, too, that at the
time of the Pomeroy decision in 1960, as noted therein, "the existence of the
'complexed' rebellion (was) still upheld by a sizable number of lawyers,
prosecutors, judges and even justices of this Court." But with the doctrine first
enunciated in 1956 in Hernandez by a bare six-to-four majority vote having
withstood the test of time6 and having been just last year unreservedly reaffirmed
without a single dissent in Lava, it cannot now be gainsaid that it is now part of
our legal system that the crime of "complexed" rebellion does not exist in our
Revised Penal Code. No prosecutor would now file an information for
"complexed" rebellion but simply for the offense of simple rebellion as defined in
Article 134 of the Revised Penal Code, and even if such an information for
"complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article
22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.Penal laws shall
have a retroactive effect insofar as they favor the person guilty
of a felony, who is not a habitual criminal, as this term is defined
in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions
applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines."
The situation of petitioners is no different than it would be if, say, the penalty
of reclusion perpetua were imposed by statute for the crime of simple rebellion at
the time of their conviction and they were accordingly sentenced, and the statutory
penalty were now reduced to prision mayor or 12 years imprisonment; having
served out the maximum penalty of 12 years now imposed by the amended statute,
they would be entitled to invoke the retroactive effect of the statute favoring
them.lwph1.t The only difference between the situation given and the present
case is that here it is this Supreme Court, interpreting the laws in discharge of its
constitutional prerogative, that has laid down the doctrine since Hernandez in 1956
that no offense of "complexed" rebellion exists and petitioners should therefore be
now equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed erroneously that the crime committed by them was punishable by
life imprisonment, but the Court has subsequently judicially determined it not be
so and that the maximum imposable penalty is prision mayor or 12 years.
Petitioners-convicts are entitled to the benefit of this later judicial declaration, just
as if a statutory amendment had been enactednot because the sentencing court
had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should
issue, since as held in Directo vs. Director of Prisons,7 "the only means of giving
retroactive effect to a penal provision favorable to the accused where the trial
judge has lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is
universally recognized that relief by habeas corpus may be properly sought in
cases of imposition of excessive penalty, such that the part of the sentence beyond
or in excess of the power of the court to impose is held void, the applicant having
already served out the entire part of the sentence within the court's power. 8 As
pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore,
"Article 22 of the Revised Penal Code ... extends its benefits even to convicts
serving sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon
them under the former penal law was decreased by the revised code, the excess has
become illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life
sentences had jurisdiction or not to impose such penalty, or were right or wrong in
imposing such penalty, the only relevant question now is whether petitioners have
served the maximum and lesser sentence of prision mayor that this Court
has by firm judicial doctrine since 1956 determined to be the penalty that the
Revised Penal Code fixes for the crime of rebellion. Since they have actually
served much more than the maximum imposable penalty, the excess of the
sentence imposed upon them over the imposable maximum of twelve years
of prision mayor cannot but be declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030)
for the prescription of certain election offenses (fixing the same at one year after
commission) were more favorable to the accused than those of the pre-existing law
and were therefore retroactive as to the same offenses committed before the
enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law
(which amended the pre-existing Election Law) and could not be given retroactive
effect, the Court found "that practically all of the offenses defined in the former
law are also defined in the same language in Act 3030 (the new law), the only
difference being that the penalties have been increased." Holding that the
retroactivity clause of Article 22 of the Penal Code must apply in all in which the
new law is more favorable to the accused, in the absence of any express statutory
exception, the Court drew this analogy: "Let us suppose that a statute is enacted
defining the crime of murder in the same language in which it is defined in the
Penal Code, but providing that the maximum penalty for the crime defined in the
new statute shall be life imprisonment, the statute containing no provision that it
shall not be retroactive in its effect. Would anyone then maintain that the death
penalty might still be imposed for murder committed before the new statute was
enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as
to the enactment of a law statute describing the crime in the same language and
imposing a lesser penalty, but the settled doctrine of this Court that there
does not exist in our legal system the complex crime of rebellion of which the
petitioners stand convicted, "since rebellion cannot form a complex with common
crimes, because the latter are either absorbed by the rebellion itself or are
punishable as independent offenses." 11 Petitioners here have been convicted for
the very same rebellion and under the very same law for which their leaders, Jose
Lava et al., have been convicted. Yet, while their leaders have since been freed
after serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them, notwithstanding their
already having served out much more than the maximum penalty of twelve years
of prision mayor imposable upon them. The fact that the legal doubts about the
non-existence of the crime of "complexed" rebellion were cleared up only in 1956
after they had already been convicted and were serving their sentences does not
make the excess in the penalty imposed upon them beyond the maximum of twelve
years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its
corollary rule of the law of the case, have no application here. These salutary rules
decree that rights of parties having been decisively settled and determined by final
judgment of the court of competent jurisdiction with the party adversely affected
having had the opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired, judicial chaos
and disorder ensue and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an adjudicated case be
reopened simply because in another and subsequent case, this Court adopted a new
or different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns simply on the nature of the crime of rebellion as defined in section 134
of the Revised Penal Code and the maximum penalty imposable therefor under
section 135 of the same Code. As this Court had ruled since 1956--which is now
settled doctrinethat only the crime of simple rebellion exists in our legal system
for which the maximum penalty of prision mayor may be imposed, the excess of
the life sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts, the
case at bar presents a clear case of an excess in penalty imposed beyond twelve
years of prision mayor which has become illegal by virtue of this Court's settled
doctrine that the crime of rebellion cannot be complexed with other common
crimes. On this ground, as well as on the further and more fundamental ground
that to hold them liable to continue serving life sentences for a crime that the
lawat the time of their conviction as well as nowpunishes only with prision
mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is illegal and
unconstitutional and the petition for habeas corpus should be granted and
petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex
crime of rebellion with multiple murder and other crimes, and have served or are
now entering into their 17th year of imprisonment, save for petitioner Epifanio
Padua who was sentenced on December 15, 1955 and is completing his 15th year
of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life
sentences for the same charge by the Court of First Instance of Manila had their
sentences reduced last near to ten years of prision mayor by the Court in People v.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956
in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with
other common crimes since such common crimes "assume the political
complexion of the main crime of which they are mere ingredients and
consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court
rejected therein the State's plea for the reexamination and setting aside of such
doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a
very serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to adhere to
what this Court said in that case." The said leaders have since been duly freed as
having served out their penalty, but their followers, herein petitioners, are still
serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that
"(W)ith reference to persons in custody pursuant to a final judgment, the rule is
that the writ of habeas corpus can issue only for want of jurisdiction of the
sentencing court, and cannot function as a writ of error." "I grant, too, that at the
time of the Pomeroy decision in 1960, as noted therein, "the existence of the
'complexed' rebellion (was) still upheld by a sizable number of lawyers,
prosecutors, judges and even justices of this Court." But with the doctrine first
enunciated in 1956 in Hernandez by a bare six-to-four majority vote having
withstood the test of time6 and having been just last year unreservedly reaffirmed
without a single dissent in Lava, it cannot now be gainsaid that it is now part of
our legal system that the crime of "complexed" rebellion does not exist in our
Revised Penal Code. No prosecutor would now file an information for
"complexed" rebellion but simply for the offense of simple rebellion as defined in
Article 134 of the Revised Penal Code, and even if such an information for
"complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article
22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.Penal laws shall
have a retroactive effect insofar as they favor the person guilty
of a felony, who is not a habitual criminal, as this term is defined
in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions
applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines."
The situation of petitioners is no different than it would be if, say, the penalty
of reclusion perpetua were imposed by statute for the crime of simple rebellion at
the time of their conviction and they were accordingly sentenced, and the statutory
penalty were now reduced to prision mayor or 12 years imprisonment; having
served out the maximum penalty of 12 years now imposed by the amended statute,
they would be entitled to invoke the retroactive effect of the statute favoring them.
The only difference between the situation given and the present case is that here it
is this Supreme Court, interpreting the laws in discharge of its constitutional
prerogative, that has laid down the doctrine since Hernandez in 1956 that no
offense of "complexed" rebellion exists and petitioners should therefore be now
equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed erroneously that the crime committed by them was punishable by
life imprisonment, but the Court has subsequently judicially determined it not be
so and that the maximum imposable penalty is prision mayor or 12 years.
Petitioners-convicts are entitled to the benefit of this later judicial declaration, just
as if a statutory amendment had been enactednot because the sentencing court
had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should
issue, since as held in Directo vs. Director of Prisons,7 "the only means of giving
retroactive effect to a penal provision favorable to the accused where the trial
judge has lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is
universally recognized that relief by habeas corpus may be properly sought in
cases of imposition of excessive penalty, such that the part of the sentence beyond
or in excess of the power of the court to impose is held void, the applicant having
already served out the entire part of the sentence within the court's power. 8 As
pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore,
"Article 22 of the Revised Penal Code ... extends its benefits even to convicts
serving sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon
them under the former penal law was decreased by the revised code, the excess has
become illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life
sentences had jurisdiction or not to impose such penalty, or were right or wrong in
imposing such penalty, the only relevant question now is whether petitioners have
served the maximum and lesser sentence of prision mayor that this Court
has by firm judicial doctrine since 1956 determined to be the penalty that the
Revised Penal Code fixes for the crime of rebellion. Since they have actually
served much more than the maximum imposable penalty, the excess of the
sentence imposed upon them over the imposable maximum of twelve years
of prision mayor cannot but be declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030)
for the prescription of certain election offenses (fixing the same at one year after
commission) were more favorable to the accused than those of the pre-existing law
and were therefore retroactive as to the same offenses committed before the
enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law
(which amended the pre-existing Election Law) and could not be given retroactive
effect, the Court found "that practically all of the offenses defined in the former
law are also defined in the same language in Act 3030 (the new law), the only
difference being that the penalties have been increased." Holding that the
retroactivity clause of Article 22 of the Penal Code must apply in all in which the
new law is more favorable to the accused, in the absence of any express statutory
exception, the Court drew this analogy: "Let us suppose that a statute is enacted
defining the crime of murder in the same language in which it is defined in the
Penal Code, but providing that the maximum penalty for the crime defined in the
new statute shall be life imprisonment, the statute containing no provision that it
shall not be retroactive in its effect. Would anyone then maintain that the death
penalty might still be imposed for murder committed before the new statute was
enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as
to the enactment of a law statute describing the crime in the same language and
imposing a lesser penalty, but the settled doctrine of this Court that there
does not exist in our legal system the complex crime of rebellion of which the
petitioners stand convicted, "since rebellion cannot form a complex with common
crimes, because the latter are either absorbed by the rebellion itself or are
punishable as independent offenses." 11 Petitioners here have been convicted for
the very same rebellion and under the very same law for which their leaders, Jose
Lava et al., have been convicted. Yet, while their leaders have since been freed
after serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them, notwithstanding their
already having served out much more than the maximum penalty of twelve years
of prision mayor imposable upon them. The fact that the legal doubts about the
non-existence of the crime of "complexed" rebellion were cleared up only in 1956
after they had already been convicted and were serving their sentences does not
make the excess in the penalty imposed upon them beyond the maximum of twelve
years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its
corollary rule of the law of the case, have no application here. These salutary rules
decree that rights of parties having been decisively settled and determined by final
judgment of the court of competent jurisdiction with the party adversely affected
having had the opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired, judicial chaos
and disorder ensue and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an adjudicated case be
reopened simply because in another and subsequent case, this Court adopted a new
or different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns simply on the nature of the crime of rebellion as defined in section 134
of the Revised Penal Code and the maximum penalty imposable therefor under
section 135 of the same Code. As this Court had ruled since 1956--which is now
settled doctrinethat only the crime of simple rebellion exists in our legal system
for which the maximum penalty of prision mayor may be imposed, the excess of
the life sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts, the
case at bar presents a clear case of an excess in penalty imposed beyond twelve
years of prision mayor which has become illegal by virtue of this Court's settled
doctrine that the crime of rebellion cannot be complexed with other common
crimes. On this ground, as well as on the further and more fundamental ground
that to hold them liable to continue serving life sentences for a crime that the
lawat the time of their conviction as well as nowpunishes only with prision
mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is illegal and
unconstitutional and the petition for habeas corpus should be granted and
petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38975 January 17, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. EDUARDO P. CAGUIOA Judge, Court of First Instance of Bulacan,
Branch VII, and PAQUITO YUPO, respondents.
Assistant Provincial Fiscal Amando C. Vicente for petitioner.
Edelmiro A. Amante for private respondent.
FERNANDO, C.J.:
It is not easy to make out a case of improvident exercise of authority on the part of
a lower court when the assailed actuation was clearly inspired by a desire to adhere
to the literal and explicit mandate of the Constitution. That is the difficulty
confronting the prosecution when it filed this certiorari proceeding resulting from
respondent Judge Eduardo P. Caguioa sustaining the objection of the defense to
questions asked a witness based on an alleged extrajudicial admission by an
accused private respondent Paquito Yupo, during a police interrogation conducted
on July 18, 1973, without his having been assisted by counsel. There was, in the
opinion of respondent Judge, a clear failure to abide by the express prohibition in
the fundamental law against the possibility of any confession obtained from a
person under investigation without his having been informed of his right to keep
silent and to have the benefit of counsel. 1 Clearly then, the leading case
of Magtoto v. Manguera 2 does not apply. the interrogation having taken place six
months after the effectivity Of the present Constitution. The prosecution would
deny its applicability, contending that there was a waiver. Respondent Judge was
of the view that this innovation in the Constitution, intended to buttress and fortify
the right against self-incrimination, was not susceptible of waiver. When he
remained firm in his stand, the petition was filed, a grave abuse of discretion being
imputed to him.
According to the petition, the Provincial Fiscal of Bulacan filed on September 14,
1973, in the Court of First Instance of Bulacan, an information for murder against
Paquito Yupo y Gonzales, which was docketed as Criminal Case No. 146-V-73,
with the case, after the raffle, being assigned to Branch VIII, presided by
respondent Judge. 3 Upon arraignment on October 5, 1973, the accused pleaded
not guilty. 4 The trial of the case then proceeded, the prosecution having presented
six witnesses, including the father of the deceased, Miguel Tribol, and his
common-law wife, Lydia Begnotia who allegedly received the ante
mortem statement of the victim, Rodolfo Tribol. 5 Then, at the hearing on June 3,
1974, the prosecution presented Corporal Conrado Roca of the Meycauayan Police
Department, before whom a written statement of the accused Paquito Yupo and his
alleged waiver of his right to remain silent and to be assisted by a counsel of his
own choice was taken. 6 After this witness had Identified the statement of the
accused and the waiver, he was questioned on the incriminating answers in such
statement to the police, but there was an objection on the part of the defense
counsel based on the ground of such statement being inadmissible in evidence, as
the statement was taken by the police without any counsel assisting the accused in
the investigation. 7 Respondent Judge sustained the objection of the defense on the
view that such judicial confession of the accused is inadmissible in evidence for
being unconstitutional, it appearing that the accused was not assisted by a counsel
when it was given.8 He likewise stated that such right could not be waived. 9 Upon
his refuse to reconsider such ruling, this petition was filed.
Certiorari does not lie. The petition must be dismissed. It was not shown that the
alleged waiver was given freely and voluntarily. The questioning was rather
perfunctory. An even more telling circumstance against such alleged waiver being
given credence was that private respondent, a native of Samar, then nineteen years
old, was interrogated extensively in Tagalog, no showing having been made that
his acquaintance with the language was such that he could fully understand the
import of what was asked him. On the specific question of whether or not the right
to counsel during custodial interrogation interrogation may be waived, the Court
rules that there is no bar to such a waiver if made intelligently and voluntarily,
with full understanding of its consequences.
1. As far back as Abriol v. Homeres, 10 a 1949 decision, decided under the 1935
Constitution, which did not contain a provision similar to Section 20 which
adopted the Miranda doctrine, this Court, through Justice Ozaeta, relying on the
leading American case of Johnson v. Zerbst, 11 made clear that while there could
be a waiver of the rights of an accused, it must be intelligently waived, otherwise a
court's jurisdiction starting at the banning of the trial may be lost in the course of
the proceeding. 12 The landmark opinion of Miranda v. Arizona, 13 decided in
1966, as noted above, the source of this constitutional provision, emphasized that
statements made during the period of custodial interrogation to be admissible
require a clear intelligent waiver of constitutional rights, the suspect being warned
prior to questioning that he has a right to remain silent, that any utterance may be
used against him and that he has the right to the presence of a counsel, either
retained or appointed. In the language of Chief Justice Warren: "Our holding win
be spelled out with some specificity in the pages which follow, but briefly stated, it
is this: the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. As for the
procedural safeguards to be employed, unless other fully effective means are
devised to inform accused persons of their right of silence and to assure a
continuous opportunity to exercise it, the following measures are required. Prior to
any questioning, the person must be warned that he has a right to remain silent,
that any statement he does not make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of those rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking, there can be no questioning. Likewise, if the individual is alone and
indicates in any manner that he does not wish to be interrogated, the police may
not question him. The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of the right to
refrain from answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned." 14
2. Tested by such a clear and unequivocal standard, the alleged waiver falls far
short. It is clearly inadmissible. There was a perfunctory opening statement asked
by a certain Corporal Conrado B. Roca of the Police Force of Meycauayan,
worded thus: "Ipinaaalam ko sa iyo na ikaw ay sinisiyasat tungkol sa isang
paglabag sa batas na iyong ginawa, bago ko ipagpatuloy ang pagtatanong sa iyo,
ikaw ay may karapatan na huwag magsalita kung ayaw mo at may karapatan ka
rin na magkaroon ng abogado na iyong gusto at dapat mo ring mabatid na
anuman ang sabihin mo dito ay maaaring gamitin ng ayon o laban sa iyo,
magsasalaysay ka pa rin ba?" 15 Then came the monosyllabic answer Opo. That
was ala Even the very annex submitted to the petition merely stated that there were
signatures of private respondent Yupo, the aforesaid Roca, and a certain Roberto
Sales. The day when it was subscribed and sworn to, allegedly before Municipal
Judge Mariano Mendieta was not even specified. Again, there was a statement that
it was a certified true copy by a certain Teresita M. Tecson, whose connection with
the case or with the court was not even shown. There was no signature. There were
only illegible letters, perhaps indicating that they were the initials. The doubt that
must have occurred to the police officials of Meycauayan is evident from their
submitting a one-page statement, presumably signed by the same people and
certified by the same Tecson, reading in fun as follows: "[Sa sinumang
Kinauukulan lpinabasa, ipinaalam at naintindihan ni Paquito Yupo y Gonzales],
19 na taong gulang, binata tubo sa San Policarpio, Eastern Samar ang nasa ibaba
nito '[Ikaw ay sinisiyasat ngayon dahilan sa paglabag sa batas. Karapatan mo ang
huwag magsalita. Anumang iyong sasabihin ay maaring gamiting katibayan laban
sa iyo. At ikaw ay may karapatan sa tulong at sa pagharap ng abogado na iyong
napipisil sa habila ng kabatiran ni [Paquito Yupo ng mga nilalaman ng nasa
itaas, siya ay nagbigay pa rin ng salaysay.,"16 Could it be their way of trying to
impress on a court the fact that there was an in waiver? If so, it did not cure the
fatal infirmity. Rather the contrary.
3. People v. Bacong 17 stands as a warning against imputing to an accused an
understanding of the proceeding when the language used is one with which he is
not familiar. The point at issue was whether there was an improvident plea of guilt.
It was stressed in the brief filed on behalf of the accused that he " 'is an ignorant
and illiterate person, a neophyte in the national penitentiary, and one fully
conversant [only] with his native Visayan. This is apparent from his statement
thus: "26. T Marunong ka bang bumasa at sumulat ng wikang tagalog? & Naka
uunawa po ako sir, pero hindi po ako masyadong marunong, ang tangi ko pong
naiisulat ay ang aking pangalan " ... An observation and closer look [at] his
signature indeed reveals that the accused is an illiterate and unschooled person.
The strokes of his signature are irregular, halting, and show a difficult and
laborious effort to write the letters of his name. ... In his signature on file with this
Honorable Court, the same observations can be made. ... Admittedly, the accused
is a Visayan and still a neophyte in the national penitentiary who does not
understand well Tagalog. ... We cannot expect the accused to have fully
understood the legal signification of these qualifying circumstances, which
allegations had been the subject of various interpretations of our courts. ...' " 18 As
a matter of fact in that case, Solicitor General Estelito P. Mendoza, in lieu of
appellant's brief filed a manifestation admitting that there was an improvident plea
of guilt and that judgment should be set aside. In that case, there was an effort to
ascertain whether the accused could read and write in Tagalog' In this case, the
private respondent, a Visayan, was asked a kilometric question in Tagalog, and the
interrogator was satisfied with the monosyllabic Opo. Also, the failure to submit to
this Court the alleged signature of private respondent may be indicative of the fear
on the part of counsel for petitioner that the absence of education of the nineteen-
year old private respondent would be apparent. At any rate, it cannot be denied
that to predicate a waiver under the circumstances disclosed would be to nullify
the plain command of the constitutional provision requiring that a confession to be
admissible must be given only if the accused were informed of his right to remain
silent and to counsel; otherwise, it is "inadmissible in character." The lower court,
therefore, acted in accordance with the plain dictate of the Constitution. To quote
from that eminent civil libertarian Justice Douglas: "Formulas of respect for
constitutional safeguards cannot prevail over the facts of life which contradict
them. They may not become a cloak for inquisitorial practices and make an empty
form of [constitutional rights]." 19
WHEREFORE, the petition for certiorari is dismissed. The trial of the case is
ordered to be resumed forthwith No costs.
Makasiar, Concepcion Jr., Santos, Fernandez, Guerrero, Abad Santos, De Castro
and Melencio-Herrera, JJ., concur.
Teehankee, J., concur in the result.
Antonio, J., concur in the dissent of Justice Aquino.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-51770 March 20, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO GALIT, defendant-appellant.
CONCEPCION, JR., J:
1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He
had been detained and interrogated almost continuously for five days, to no avail.
He consistently maintained his innocence. There was no evidence to link him to
the crime. Obviously, something drastic had to be done. A confession was
absolutely necessary. So the investigating officers began to maul him and to
torture him physically. Still the prisoner insisted on his innocence. His will had to
be broken. A confession must be obtained. So they continued to maltreat and beat
him. 'They covered his face with a rag and pushed his face into a toilet bowl full of
human waste. The prisoner could not take any more. His body could no longer
endure the pain inflicted on him and the indignities he had to suffer. His will had
been broken. He admitted what the investigating officers wanted him to admit and
he signed the confession they prepared. Later, against his will, he posed for
pictures as directed by his investigators, purporting it to be a reenactment.
2. This incident could have happened in a Russian gulag or in Hitler's Germany.
But no it did not. It happened in the Philippines. In this case before Us.
3. The Revised Penal Code punishes the maltreatment of prisoners as follows:
ART. 235. Maltreatment of prisoners. The penalty of arresto
mayor in its medium period to prision correccional in its
minimum period, in addition to his liability for the physical
injuries or damage caused, shall be imposed upon any public
officer or employee who shall over do himself in the correction
or handling of a prisoner or detention prisoner under his charge,
by the imposition of punishments in a cruel and humiliating
manner.
If the purpose of the maltreatment is to extort a confession, or to
obtain some information from the prisoner, the offender shall be
punished by prision correccional in its minimum period,
temporary special disqualification and a fine not exceeding 500
pesos, in addition to his liability for the physical injuries or
damage caused.
4. This Court in a long line of decisions over the years, the latest being the case
of People vs. Cabrera, 1 has consistently and strongly condemned the practice of
maltreating prisoners to extort confessions from them as a grave and unforgivable
violation of human rights. But the practice persists. Fortunately, such instances
constitute the exception rather than the general rule.
5. Before Us for mandatory review is the death sentence imposed upon the accused
Francisco Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No.
CCC-VII-2589 of said court.
6. The record shows that in the morning of August 23, 1977, Mrs. Natividad
Fernando, a widow, was found dead in the bedroom of her house located at Barrio
Geronimo, Montalban, Rizal, as a result of seven (7) wounds inflicted upon
different parts of her body by a blunt instrument. 2 More than two weeks
thereafter, police authorities of Montalban picked up the herein accused, Francisco
Galit, an ordinary construction worker (pion) living in Marikina, Rizal, on
suspicion of the murder. On the following day, however, September 8, 1977, the
case was referred to the National Bureau of Investigation (NBI) for further
investigation in view of the alleged limited facilities of the Montalban police
station. Accordingly, the herein accused was brought to the NBI where he was
investigated by a team headed by NBI Agent Carlos Flores. 3 NBI Agent Flores
conducted a preliminary interview of the suspect who allegedly gave evasive
answers to his questions. 4 But the following day, September 9, 1977, Francisco
Galit voluntarily executed a Salaysay admitting participation in the commission of
the crime. He implicated Juling Dulay and Pabling Dulay as his companions in the
crime. 5 As a result, he was charged with the crime of Robbery with Homicide, in
an information filed before the Circuit Criminal Court of Pasig, Rizal, committed
as follows:
That on or about the 23rd day of August 1977 in the
municipality of Montalban, province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together with Juling Doe
and Pabling Doe, whose true Identities and present whereabouts
are still unknown and three of them mutually helping and aiding
one another, with intent of gain and by means of force,
intimidation and violence upon the person of one Natividad
Fernando while in her dwelling, did, then and there wilfully,
unlawfully, and feloniously take, steal and carry away from the
person of said Natividad Fernando, cash money of an
undetermined amount, belonging to said Natividad Fernando,
thereby causing damage and prejudice to the latter in an
undetermined amount; that by reason or on the occasion of said
robbery, and for purpose of enabling them (accused) to take,
steal and carry away the said cash money in pursuance of their
conspiracy and for the purpose of insuring the success of their
criminal act, with intent to kill, did, then and there wilfully,
unlawfully, and feloniously attack, assault and stab with a
dagger said Natividad Fernando on the different parts of her
body, thereby inflicting multiple injuries on the head and
extremities, which directly caused her death, and the total
amount of the loss is P10,000.00 including valuables and cash.
Trial was held, and on August 11, 1978, immediately after the accused had
terminated the presentation of his evidence, the trial judge dictated his decision on
the case in open court, finding the accused guilty as charged and sentencing him to
suffer the death penalty; to indemnify the heirs of the victim in the sum of
P110,000.00, and to pay the costs. Hence, the present recourse.
7. The incriminatory facts of the case, as found by the trial court, are as follows:
From the evidence adduced in this case, it was gathered that in
the early morning of August 23, 1977, a 70-year old woman
named Natividad Fernando, widow, in the twilight of her life,
was robbed and then hacked to death by the accused and two
others in her (victim's) own residence at Montalban, Rizal.
Prosecution witness Florentino Valentino testified that he heard
accused Francisco Galit and his wife having an argument in
connection with the robbery and killing of the victim, Natividad
Fernando. It appears that on August 18, 1977, accused Galit and
two others, namely, Juling Dulay and a certain "Pabling"
accidentally met each other at Marikina, Rizal, and in their
conversation, the three agreed to rob Natividad Fernando; that it
was further agreed among them to enter the premises of the
victim's house at the back yard by climbing over the fence; that
once inside the premises, they will search every room, especially
the aparador and filing cabinets, with the sole aim of looking for
cash money and other valuables.
Witness Valentino further testified that on August 22, 1977, at
around 6:00 o'clock in the afternoon, accused Francisco Galit
and his two companions, Juling Dulay and Pabling, as per their
previous agreement, met at the place where they formerly saw
each other in Mariquina, Rizal; that the three conspirators took a
jeepney for Montalban and upon passing the Montalban
Municipal Building, they stopped and they waited at the side of
the road until the hour of midnight; that at about 12:00 o'clock
that night, the three repaired to the premises of the victim,
Natividad Fernando; that they entered the said premises through
the back wall of the house; that while entering the premises of
said house, Juling Dulay saw a bolo, lying near the piggery
compound, which he picked up and used it to destroy the back
portion of the wall of the house; that it was Juling Dulay who
first entered the house through the hole that they made, followed
by the accused Galit and next to him was "Pabling", that it was
already early dawn of August 23, 1977 when the three were able
to gain entrance into the house of the victim; as the three could
not find anything valuable inside the first room that they entered,
Juling Dulay destroyed the screen of the door of the victim,
Natividad Fernando; that upon entering the room of the victim,
the three accused decided to kill first the victim, Natividad
Fernando, before searching the room for valuables; that Juling
Dulay, who was then holding the bolo, began hacking the victim,
who was then sleeping, and accused Galit heard a moaning
sound from the victim; that after the victim was killed, the three
accused began searching the room for valuables; that they helped
each other in opening the iron cabinet inside the room of the
victim, where they found some money; that when the three
accused left the room of the victim, they brought with them
some papers and pictures which they threw outside; that after
killing and robbing the victim, the three accused went out of the
premises of the house, using the same way by which they gained
entrance, which was through the back portion of the wall; that
the three accused walked towards the river bank where they
 divided the loot that they got from the room of the victim; that
their respective shares amount to P70.00 for each of them; and
that after receiving their shares of the loot, the three accused left
and went home.
When witness Florentino Valentino was in his room, which was
adjoining that of accused Francisco Galit, he overheard accused
Galit and his wife quarreling about the intention of accused Galit
to leave their residence immediately; that he further stated that
he overheard accused Galit saying that he and his other two
companions robbed and killed Natividad Fernando.
As a result of the killing, the victim, Natividad Fernando,
suffered no less than seven stab wounds. There was massive
cerebral hemorrhage and the cause of death was due to shock
and hemorrhage, as evidenced by the Medico-Legal Necropsy
Report (Exhs. 'C' and 'C-2'), and the pictures taken of the
deceased victim (Exhs. 'E', 'E-1' and 'E-2').
8. The accused, upon the other hand, denied participation in the commission of the
crime. He claimed that he was in his house in Marikina, Rizal, when the crime was
committed in Montalban, Rizal. He also assailed the admissibility of the extra-
judicial confession extracted from him through torture, force and intimidation as
described earlier, and without the benefit of counsel.
9. After a review of the records, We find that the evidence presented by the
prosecution does not support a conviction. In fact, the findings of the trial court
relative to the acts attributed to the accused are not supported by competent
evidence. The principal prosecution witness, Florentino Valentino merely testified
that he and the accused were living together in one house in Marikina, Rizal, on
August 23, 1977, because the mother of his wife is the wife of the accused; that
when he returned home at about 4:00 o'clock in the morning from the police
station of Marikina, Rizal, the accused and his wife were quarreling (nagtatalo);
that he heard that the accused was leaving the house because he and his
companions had robbed "Aling Nene", the owner of a poultry farm and piggery in
Montalban, Rizal; that the wife of the accused was imploring him not to leave, but
the latter was insistent; that he saw the accused carrying a bag containing about
two handfuls (dakot) of coins which he had taken from Aling Nene; that upon
learning of what the accused had done, he went to the Montalban police the next
day and reported to the police chief about what he had heard; and that a week later,
Montalban policemen went to their house and arrested the accused. 6
10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct
procedure for peace officers to follow when making an arrest and in conducting a
custodial investigation, and which We reiterate:
7. At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed
of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him.
The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient
means by telephone if possible or by letter or messenger.
It shall be the responsibility of the arresting officer to see to it
that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone
on his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel.
Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence.
11. There were no eyewitnesses, no property recovered from the accused, no state
witnesses, and not even fingerprints of the accused at the scene of the crime. The
only evidence against the accused is his alleged confession. It behooves Us
therefore to give it a close scrutiny. The statement begins as follows:
I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mg
ilalim ng Saligang-Batas ng Pilipinas na kung inyong nanais
hindi kayo magbigay ng isang salaysay, na hindi rin kayo m
saktan at pangakuan upang magbigay ng naturang salaysay,
inyong sasabihin sa pagsisiyasat na ito ay maaaring laban sa
anumang usapin na maaaring ilahad sa anumang hukuman o
Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin m
manananggol at kung sakaling hindi mo kayang bayaran ang
manananggol ay maaaring bigyan ka ng isa ng NBI. Ngayon
ang mga ito nakahanda ka bang magbigay ng isang kusang-
sa pagtatanong na ito?
SAGOT: Opo.
12. Such a long question followed by a monosyllabic answer does not satisfy the
requirements of the law that the accused be informed of his rights under the
Constitution and our laws. Instead there should be several short and clear questions
and every right explained in simple words in a dialect or language known to the
person under investigation. Accused is from Samar and there is no showing that he
understands Tagalog. Moreover, at the time of his arrest, accused was not
permitted to communicate with his lawyer, a relative, or a friend. In fact, his sisters
and other relatives did not know that he had been brought to the NBI for
investigation and it was only about two weeks after he had executed
the salaysay that his relatives were allowed to visit him. His statement does not
even contain any waiver of right to counsel and yet during the investigation he was
not assisted by one. At the supposed reenactment, again accused was not assisted
by counsel of his choice. These constitute gross violations of his rights.
13. The alleged confession and the pictures of the supposed re-enactment are
inadmissible as evidence because they were obtained in a manner contrary to law.
14. Trial courts are cautioned to look carefully into the circumstances surrounding
the taking of any confession, especially where the prisoner claims having been
maltreated into giving one. Where there is any doubt as to its voluntariness, the
same must be rejected in toto.
15. Let a copy of this decision be furnished the Minister of Justice for whatever
action he may deem proper to take against the investigating officers.
16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET
ASIDE, and another one entered ACQUITTING the accused Francisco Galit of the
crime charged. Let him be released from custody immediately unless held on other
charges. With costs de oficio.
17. SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana,
Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
Aquino, J., took no part.
SECOND DIVISION
G.R. Nos. 100801-02 August 25, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DONATO B. CONTINENTE and JUANITO T. ITAAS, JOHN DOE, PETER
DOE, JAMES DOE, PAUL DOE and SEVERAL OTHER DOES (at
large), accused,
DONATO B. CONTINENTE and JUANITO T. ITAAS, accused-appellants.
DECISION
DE LEON, JR., J.:
Before us on appeal is the Decision1 dated February 27, 1991 of the Regional Trial
Court of Quezon City, Branch 88, in Criminal Cases Nos. 89-4843 and 89-4844
finding herein appellants guilty beyond reasonable doubt of the crimes of murder
and frustrated murder, respectively for the killing of U.S. Col. James N. Rowe and
for seriously wounding Joaquin Vinuya.
It appears that appellant Donato Continente and several other John Does were
initially charged with the crimes of murder and frustrated murder in two (2)
separate Informations dated June 20, 1989 in connection with the shooting incident
on April 21, 1989 at the corner of Tomas Morato Street and Timog Avenue in
Quezon City which caused the death of U.S. Col. James N. Rowe while seriously
wounding his driver, Joaquin Vinuya. After the arrest of another suspect, Juanito
Itaas, on August 27, 1989 in Davao City, the prosecution, with prior leave of court,
filed two (2) separate amended Informations for murder and frustrated murder to
include Juanito T. Itaas, among the other accused. The amended Informations in
Criminal Cases Nos. 89-4843 and 89-4844 read:
Criminal Case No. Q-89-4843 for Murder:
"That on or about the 21st day of April, 1989, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together, confederating with and mutually helping one another, with
intent to kill, with evident premeditation and treachery and with the use of armalite
rifles and motor vehicles, did then and there wilfully, unlawfully and feloniously
attack, assault, and employ personal violence upon the person of COL. JAMES N.
ROWE, a U.S. Army Officer, by then and there firing at him while then on board a
Toyota car, hitting him on the different parts of his body, thereby inflicting upon
him serious and mortal gunshot wounds, which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of said Col. James N.
Rowe in such amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW."
Criminal Case No. Q-89-4844 for Frustrated Murder:
"That on or about the 21st day of April 1989, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together, confederating with and mutually helping one another, with
intent to kill, with evident premeditation and treachery and with the use of armalite
rifles and motor vehicles, did, then and there wilfully, unlawfully and feloniously
attack, assault and employ personal violence upon the person of JOAQUIN
BINUYA, by then and there firing at him while then on board a Toyota car, hitting
him on the scalp and body, thereby inflicting upon him serious and mortal gunshot
wounds, thus performing all the acts of execution which would have produced the
crime of murder, but nevertheless did not produce it, by reason of causes
independent of their own will, that is the timely intervention of medical assistance,
to the damage and prejudice of said Joaquin Binuya in such amount as may be
awarded under the provisions of the Civil Code.
CONTRARY TO LAW."
Upon being arraigned on August 31, 1989, appellant Donato B. Continente,
assisted by his counsel of choice, pleaded "Not guilty" to each of the amended
Informations in both criminal cases. On the scheduled arraignment of appellant
Juanito Itaas on October 31, 1989, appellant Itaas, upon the advice of his counsel,
refused to enter any plea. Hence, the trial court ordered that a plea of "Not guilty"
be entered in each of the amended Informations in both criminal cases for the said
appellant.
From the evidence adduced by the prosecution, it appears that on April 21, 1989 at
around 7:00 o'clock in the morning, the car of U.S. Col. James N. Rowe, Deputy
Commander, Joint U. S. Military Assistance Group (JUSMAG for brevity), was
ambushed at the corner of Tomas Morato Street and Timog Avenue in Quezon
City. Initial investigation by the Central Intelligence Service (CIS for brevity),
National Capital District Command, Camp Crame, Quezon City which was led by
Capt. Gil Meneses, Assistant Chief of the Special Investigation Branch, CIS,
shows that on the date and time of the ambush, Col. James Rowe, was on board his
gray Mitsubishi Galant car which was being driven by Joaquin Vinuya; and that
they were at the corner of Tomas Morato Street and Timog Avenue in Quezon
City on their way to the JUSMAG Compound along Tomas Morato Street when
gunmen who were on board an old model Toyota Corolla car suddenly fired at his
car, thereby killing Col. Rowe and seriously wounding his driver, Joaquin Vinuya.
The car that was used by the gunmen was followed by a Mitsubishi Lancer car
when it sped away from the site of the ambush.2 The same Toyota Corolla car was
later recovered on the same day by a team from the Philippine Constabulary (PC),
North Sector Command, led by PC/Sgt. Fermin Garma, at No. 4 Windsor Street,
San Francisco Del Monte in Quezon City.3
Upon further investigation of the case, the CIS agents established through a
confidential intelligence information the involvement of appellant Donato
Continente, an employee of the U.P. Collegian in U.P. Diliman, Quezon City, in
the ambush of Col. James Rowe and his driver. Accordingly, on June 16, 1989, the
CIS investigation team proceeded to the U.P. campus in Diliman, Quezon City to
conduct a surveillance on appellant Donato Continente. After accosting appellant
Continente inside the said U.P. campus, the CIS team took him to Camp Crame in
Quezon City for questioning.4 During the interrogation which was conducted by
CIS Investigator Virgilio Pablico in the presence of Atty. Bonifacio Manansala in
Camp Crame on June 17, 1989, appellant Continente admitted to his participation
in the ambush of Col. James Rowe and his driver as a member of the surveillance
unit under the Political Assassination Team of the CPP-NPA.5 Among the
documents confiscated from appellant Continente by the CIS agents, and for which
a receipt dated June 16, 1989 was prepared and issued by Sgt. Reynaldo dela Cruz,
was a letter addressed to "Sa Kinauukulan". At the dorsal right hand side of the
letter appear the acronyms "STR PATRC" which allegedly mean "Sa Tagumpay
ng Rebolusyon" and "Political Assassination Team, Regional Command". 6
Another confidential intelligence information established the participation of
appellant Juanito Itaas in the said ambush of Col. James Rowe and his driver on
April 21, 1989. Appellant Itaas, who was a known member of the Sparrow Unit of
the NPA based in Davao City was arrested in Davao City and was brought to
Manila by Capt. Gil Meneses for investigation.7 CIS Investigator Virgilio Pablico
investigated and took down the statements of appellant Itaas who disclosed during
the investigation that he was an active member of the Sparrow Unit of the NPA
based in Davao City and confessed, in the presence of Atty. Filemon Corpuz who
apprised and explained to him his constitutional rights, that he was one of those
who fired at the gray Mitsubishi Galant car of Col. James Rowe at the corner of
Tomas Morato Street and Timog Avenue on April 21, 1989.8 The said appellant
identified the Toyota Corolla car that the assailants rode on April 21, 1989 and the
gray Mitsubishi Galant car of Col. Rowe.9
Meanwhile, it appears that the ambush on Col. James Rowe and his driver was
witnessed by a certain Meriam Zulueta. The testimony of prosecution eyewitness
Meriam R. Zulueta reveals that at around 7:00 o'clock in the morning of April 21,
1989, she was about to cross the Tomas Morato Street on her way to the JUSMAG
Compound in Quezon City to attend a practicum in the JUSMAG Mess Hall when
she heard several gunshots. Upon looking at the direction where the gunshots
emanated, she saw persons on board a maroon car firing at a gray car at a distance
of more or less one (1) meter at the corner of Tomas Morato Street and Timog
Avenue in Quezon City. Zulueta returned to the side of the street to seek for cover
but could not find any so she docked and covered her head with her bag while
continuously looking at the persons who were firing at the gray car. 10 She
recognized appellant Juanito Itaas when the latter was presented for identification
in Camp Crame as the person, directly behind the driver of the maroon car, whose
body was half exposed while he was firing at the gray car with the use of along
firearm.11 The shooting incident lasted for about five (5) seconds only after which
the maroon car made a U-turn to Timog Avenue toward the direction of Quezon
Boulevard while being followed by a white Mitsubishi Lancer car. 12
Prosecution eyewitness Zulueta likewise recognized the driver of the white
Mitsubishi Lancer car as the same person whom she had encountered on two
occasions. Zulueta disclosed that in the morning of April 19, 1989, the white
Mitsubishi Lancer car was parked along the side of Tomas Morato Street which
was near the corner of Scout Madrinas Street. Her attention was caught by the
driver of the car, who was then reading a newspaper, when the latter remarked
"Hoy pare, ang sexy. She-boom!" as she was walking along the street toward the
JUSMAG Compound. On April 20, 1989, she saw the same person inside the
white Mitsubishi Lancer car which was then parked along the side of Tomas
Morato Street while she was again on her way to attend practicum in the JUSMAG
Compound. She learned of the identity of the driver as a certain Raymond
Navarro, who is allegedly a member of the NPA, from the pictures shown her by
the CIS investigators in Camp Crame.13
Prosecution witness Zulueta also recognized appellant Donato Continente whom
she had encountered on at least three (3) occasions at a carinderia outside the
JUSMAG Compound. Her first encounter with appellant Continente was at around
three o'clock in the afternoon on April 17, 1989 when she went out of the
JUSMAG Compound to a carinderia nearby. She mistook the said appellant for a
tricycle driver who was simply walking around the premises. She saw appellant
Continente in the same carinderia again on the following day, April 18, 1989, and
she was even teased by her companions that he was her escort. On April 19, 1989,
Zulueta saw appellant Continente for the third time inside the same carinderia
while the latter was merely standing. She came to know the identity of appellant
Continente when Continente was presented to her in Camp Crame for
identification. She thought that he was the tricycle driver whom she had seen in the
carinderia near the JUSMAG Compound.14
Joaquin Vinuya testified that he was employed by the JUSMAG, as driver, and
assigned to Col. James Rowe. On April 21, 1989, he fetched Col. Rowe from his
house in Potsdam Street, Greenhills, Mandaluyong to report for work in JUSMAG,
Quezon City. He drove along EDSA and turned left upon reaching Timog Avenue
in Quezon City. While he was making a right turn at the intersection of Timog
Avenue toward Tomas Morato Street, he noticed four (4) people on board a red
car, two (2) of whom suddenly opened fire at the car that he was driving hitting
him in the process. The shooting incident happened very fast and that he had no
opportunity to recognize the persons inside the red car. Despite the incident,
Vinuya managed to drive the car to the JUSMAG Compound. Upon arrival at the
JUSMAG Compound, he found out that Col. James Rowe, who was sitting at the
back seat of the car, was also hit during the shooting incident. 15
Col. James Rowe and Joaquin Vinuya were initially brought to the V. Luna
Hospital in Quezon City for treatment. Subsequently, they were transferred to the
Clark Air Base Hospital in Pampanga. It was only then that Vinuya learned of Col.
James Rowe's death whose body was already wrapped in a blanket. Vinuya was
treated in the Clark Air Base Hospital in Pampanga for four (4) days for the
injuries he sustained on his head, shoulder, and on the back portion of his left
hand. Thereafter, he was taken back to JUSMAG Compound in Quezon City to
recuperate.16
Prosecution witnesses Dr. Walter Divers and Dr. Jose Santiago testified on their
respective medical findings17 on the victims. Dr. Divers confirmed in court the
contents of his medical report dated April 21, 1989 which shows that Col. Rowe
sustained a gunshot wound on the left side of his head and abrasions on other parts
of his body and that he was pronounced dead upon arrival at the V. Luna Hospital
in Quezon City.18 On the other hand, Dr. Santiago identified the medical report
dated April 25, 1989 that he prepared relative to the treatment that he administered
on Joaquin Vinuya. The report shows that Vinuya sustained three (3) superficial
injuries on the scalp, on the left shoulder, and on the back of the left hand which
could have been caused by bullets that came from a gun; and that the wounds
could have caused the death of Vinuya without the medical treatment that lasted
for four (4) days.19
For the defense, appellant Juanito Itaas testified and denied the truth of the
contents of his sworn statements which are respectively dated August 29, 1989 and
August 30, 1989, insofar as the same establish his participation in the ambush of
Col. James Rowe and his driver on April 21, 1989. Appellant Itaas testified that he
was allegedly tortured by his captors on August 27 and 28, 1989 in Davao City;
that he was blindfolded and a masking tape was placed on his mouth; and that
subsequently, he was hit and mauled while a cellophane was placed on his head
thus, causing him to loss consciousness.20
Appellant Itaas further testified that he affixed his signatures on his sworn
statements dated August 29 and 30, 1989 in the presence of the CIS officers and
that Atty. Filemon Corpus was not present during those two occasions. The said
appellant admitted having sworn to the truth of the contents of his said sworn
statements before the administering fiscal, but he disclosed that the CIS officers
previously threatened him to admit the contents of the two sworn statements. 21
Appellant Donato Continente testified that he was working as messenger with the
U.P. Collegian, an official monthly publication of the University of the
Philippines. He was walking on his way home inside the U.P. campus in Diliman,
Quezon City from his workplace in Vinzon's Hall in the late afternoon of June 16,
1989 when four (4) persons blocked his way and simultaneously held his body and
covered his mouth. He asked if they had any warrant of arrest but the persons
simply boarded him inside a waiting car where he was handcuffed and blindfolded.
Thereafter, they took his wallet that contained his NBI clearance, SSS, tax account
number (TAN), identification card, two (2) pictures, and a typewritten certification
from "SINAG" where he used to work.22
Appellant Continente learned that he was taken to Camp Crame in Quezon City
only in the following morning when his blindfold was removed so that he could
give his statement in connection with the killing of Col. James Rowe before a CIS
Investigator whom he later identified during the trial as Virgilio Pablico. Appellant
Continente affirmed the truth of his personal circumstances only which appear on
his sworn statement dated June 17, 1989 but denied having made the rest of the
statements embodied therein. The said appellant claimed that he initially denied
any knowledge in the killing of Col. James Rowe but CIS Investigator Pablico
maintained that he (Continente) knew something about it; that appellant
Continente was alone with Investigator Pablico during the investigation; that he
signed his sworn statement in the presence of Pablico and swore to the truth
thereof before the administering fiscal for fear that something might happen to him
while he was alone; that he signed the last page of his sworn statement first before
signing the waiver of his constitutional rights upon arrival of Atty. Bonifacio
Manansala whose legal services was engaged by the CIS Investigators; and that he
had no opportunity to talk with Atty. Manansala who left after he (Atty.
Manansala) signed, merely as witness, the first page of his sworn statement, which
is the waiver of his constitutional rights.23
On rebuttal, prosecution witness Sgt. Reynaldo dela Cruz testified that he prepared
and issued the receipt for the documents which he confiscated from appellant
Continente on June 16, 1989; and that it is the standard operating procedure in the
CIS to put a blindfold on an arrested suspected NPA member in order to withhold
from him the view and location of the entrance, the exit and the terrain in the
camp.24
The testimony of CIS Investigator Virgilio Pablico on rebuttal reveals that during
the investigation of appellants Donato Continente and Juanito Itaas, their
respective lawyers namely, Atty. Bonifacio Manansala and Atty. Filemon Corpuz,
were present; that appellants Continente and Itaas conferred with their lawyers
before they gave their statements to the CIS investigator; that the CIS investigator
typed only the statements that the appellants had given him in response to his
questions during the investigation; that both appellants were accompanied by their
respective lawyers when they were brought to the fiscal for inquest; and that said
appellants were never tortured nor threatened during the investigations of these
cases.25
The trial court rendered its decision26 in Criminal Cases Nos. Q-89-4843 to 44 on
February 28, 1991 finding both appellants Juanito Itaas and Donato Continente
guilty beyond reasonable doubt of the crimes of murder and frustrated murder. It
ruled, thus:
"In assessing the evidence against co-accused Continente, it is undeniable that the
yardstick of his culpability hangs in the validity of the extra-judicial confession he
had executed. A close scrutiny of the document would reveal that the confession is
free from any taint of illegality and thus serves as a basis for his conviction.
The presumption of law that official duty has been regularly performed has not
been satisfactorily controverted by the accused.
Circumstances show that Continente's waiver was done with the assistance of a
counsel of his choice. The records indicate that Atty. Bonifacio Manansala was
accused's counsel during his custodial investigation and his arraignment and that
his counsel during the trial was a relative of the aforementioned lawyer. These
factors are undeniable evidence of trust reposed upon Atty. Bonifacio Manansala
by the accused.
Continente also admitted on cross-examination that he had read his statement
which included the PAGPAPATUNAY containing his waiver of constitutional
rights (TSN 29 August 1990 p. 29). Accused was raised in Metro Manila and
spoke Tagalog, thus would not have any difficulty in comprehending the questions
addressed to him and the information relayed to him with respect to his rights. The
court can not equate that whenever a suspect is taken into custody and is fearful of
his safety, the police authorities had exercised pressure or had threatened if not
subjected them to physical abuse. Moreover, the fact that the accused admitted that
his answers were typed as he spoke them (TSN August 30 1990 p.4) leaves no
room for Pablico to fabricate an answer.
xxx xxx xxx
The prosecution evidence gathered against accused Itaas cradles on two
incriminating points. The Zulueta testimony and his extra judicial confession
working independently, one without the other, have the force capable of convicting
the accused. The interplay of these two valuable evidence solidifies a ruling of
guilt against accused Itaas.
The defense raised by the accused is not sufficient to overrule this Court's
determination of guilt against Itaas.
The testimony of Zulueta has been candid and straightforward, devoid of any Appellant Continente raised the following assignments of error by the trial court:
material contradiction. No motive has been imputed to assail the credibility of her
testimony. xxx I

xxx xxx xxx THE HONORABLE LOWER COURT ERRED IN ADMITTING AND
GIVING PROBATIVE VALUE TO THE EXTRA-JUDICIAL
With respect to the extra-judicial confession executed by accused Itaas, the Court CONFESSION OF ACCUSED-APPELLANT CONTINENTE.
finds that such was made pursuant to the Constitution. Although it may be argued
that accused resides in Davao, the fact that he could understand Tagalog as II
admitted by him in his testimony and proven by the proceedings in court where he
was answering questions addressed to him in Tagalog militates against his inability
THE HONORABLE LOWER COURT ERRED IN GIVING
to comprehend his right and its subsequent waiver. Counsel for accused contests CREDENCE TO THE IDENTIFICATION OF ACCUSED-
the independence and competence of Atty. Filemon Corpuz on the ground that said APPELLANT CONTINENTE BY THE PROSECUTION'S LONE
lawyer was a military lawyer. Although the military background of Atty. Corpuz is
WITNESS.
admitted, this does not automatically disqualify him to act as lawyer for the
accused. Proof of the fact that he failed to render his duty to safeguard the rights of
the accused must be shown before this court nullifies the weight of Itaas' extra- III
judicial confession. The allegation of torture similarly rings hollow. No medical
certificate had been shown by the accused that he had indeed suffered brutal THE HONORABLE LOWER COURT ERRED IN FINDING
treatment from his jailers specially since he had alleged to have been treated by a ACCUSED-APPELLANT CONTINENTE GUILTY BEYOND
doctor for his injuries." REASONABLE DOUBT OF THE CRIMES CHARGED.

Thereafter, the trial court meted out the following penalties on the appellants: On the other hand, appellant Itaas interposed the following assignments of error:

"WHEREFORE, in view of all the foregoing, this Court finds accused DONATO I
CONTINENTE y BUENVENIDA and JUANITO ITAAS y TURA GUILTY
beyond reasonable doubt of the crimes of MURDER and FRUSTRATED THE LOWER COURT COMMITTED REVERSIBLE ERROR IN
MURDER, and each is hereby sentenced to suffer an imprisonment of ADMITTING AND APPRECIATING THE EYEWITNESS
RECLUSION PERPETUA for the killing of Col. James Rowe, to pay P30,000.00 TESTIMONY OF MERIAM ZULUETA.
to the heirs; and an imprisonment from Ten (10) Years and One (1) Day of
PRISION MAYOR as MINIMUM to Seventeen (17) Years, Four (4) Months and II
One (1) Day of RECLUSION TEMPORAL as MAXIMUM for the crime
committed against Joaquin Vinuya, and to pay the cost.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN
ADMITTING AND APPRECIATING THE ALLEGED EXTRA-
SO ORDERED." JUDICIAL CONFESSIONS OF ACCUSED-APPELLANT ITAAS.

From the foregoing judgment of the trial court, appellants Donato Continente and III
Juanito Itaas separately instituted the instant appeal.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN
On March 15, 1993, appellant Donato Continente filed his Appellant's ADMITTING TESTIMONIAL AND PHOTOGRAPHIC EVIDENCE
Brief27 while appellant Juanito Itaas filed his Appellant's Brief28 on March 5, 1993. SHOWING THE ACCUSED-APPELLANT POSING BESIDE THE
The Office of the Solicitor General filed the Appellee's Brief29 for the People on AMBUSHER'S AND THE VICTIM'S ALLEGED CARS.
October 4, 1993. Appellant Itaas filed a Reply Brief30 on December 3, 1993.
 IV
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN
HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE ALL
THE ESSENTIAL ELEMENTS OF THE CRIMES CHARGED.
V JUSMAG.
THE EXTENSIVE PUBLICITY BY THE AUTHORITIES DEPICTING
ACCUSED-APPELLANT ITAAS AS "THE ROWE KILLER", A
"COMMUNIST" AND A MEMBER OF THE CPP/NPA/NDF/ABB
INFLUENCED MERIAM ZULUETA'S IDENTIFICATION OF
ACCUSED-APPELLANT AND THE LOWER COURT'S JUDGMENT.
The principal issues are:
1. Whether or not the waivers of the constitutional rights during custodial
investigation by the appellants were valid; and
2. Whether or not the testimony of prosecution eyewitness Meriam
Zulueta was credible.
The rights of the accused during custodial investigation are enshrined in Article
III, Section 12 (1) of the 1987 Constitution which provides that:
"Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel."
The rights to remain silent and to counsel may be waived by the accused provided
that the constitutional requirements are complied with. It must appear clear that the
accused was initially accorded his right to be informed of his right to remain silent
and to have a competent and independent counsel preferably of his own choice. In
addition, the waiver must be in writing and in the presence of counsel. If the
waiver complies with the constitutional requirements, then the extrajudicial
confession will be tested for voluntariness,31 i. e., if it was given freely-without
coercion, intimidation, inducement, or false promises; and credibility, 32 i.e., if it
was consistent with the normal experience of mankind.
In assailing the validity of their written statements, appellants Donato Continente
and Juanito Itaas contend that they were not properly informed of their custodial
rights under the constitution as to enable them to make a valid waiver. The
pertinent portion of appellant Donato Continente's written statement dated June 17,
1989 is quoted hereunder, to wit:
PALIWANAG: G. Donato Continente, ang pagsisiyasat na ito ay may kinalaman
sa pagkaka-ambush at pagpatay kay U.S. Army Colonel James Rowe ng
Bago kita simulang tanungin ay nais ko munang ipabatid sa iyo ang iyong mga
karapatan alinsunod sa ating umiiral na Saligang Batas. Ito ay ang mga
sumusunod:
Una, ikaw ay may karapatang manahimik o huwag magbigay ng salaysay. Kung
ikaw ay magbibigay ng salaysay, ipinaalala ko sa iyo na anumang sasabihin mo sa
salaysay mong ito ay maaaring gamiting ebidensiya pabor o laban sa iyo sa
anumang hukuman dito sa Pilipinas.
Ikalawa, karapatan mong magkaroon ng abogado ayon sa iyong sariling pili
habang ikaw ay aking tinatanong. Kung ikaw ay walang kakayanang umupa ng
abogado, ikaw ay bibigyan namin ng isang abogado ng gobyerno bilang tumayo na
iyong tagapayo at ng sa gayon ay maprotektahan ang iyong mga karapatan.
Ikatlo, karapatan mong malaman at mapagpaliwanagan ng mga karapatan mong
ito.
TANONG: Nauunawaan mo ba ang mga karapatan mong ito?
SAGOT: Opo. Nauunawaan ko po.
TANONG: Mayroon ka bang abogado na naririto sa ngayon upang siya mong
maging tagapayo?
SAGOT: Wala po pero nakapagdesisyon na po ako na ako ay magbibigay ng
salaysay kahit na wala akong nakaharap na abogado.
TANONG: G. Continente, ang pagsusuko ng mga karapatan, ayon narin sa batas,
ay kinakailangang gawin sa harap ng isang abogado. Payag ka bang magsuko ng
iyong mga karapatan sa harap ng isang abogado ng gobyerno?
SAGOT: Pumapayag po ako.
TANONG: Nakahanda ka rin bang lumagda sa isang pagpapatunay na ikaw ay
napagpaliwanagan ng iyong mga karapatan, at nauunawaan mo ang mga karapatan
mong ito?
SAGOT: Opo.33
On the other hand, the pertinent portion of appellant Itaas' written statement dated
August 29, 1989 is quoted, to wit:
01. PALIWANAG: G. Juanito Itaas, ang pagsisiyasat na ito ay may kinalaman sa
pagkakaambush at pagpatay kay Colonel James Rowe ng JUSMAG at pagkasugat
ng kanyang driver. Bago kita simulang tanungin ay nais ko munang ipabatid sa iyo
ang iyong mga karapatan alinsunod sa ating Bagong Saligang Batas. Ito ay mga
sumusunod. Una, ikaw ay may karapatang manahimik o huwag magbigay ng
salaysay. Kung ikaw ay magbibigay ng salaysay, ipinaalala ko sa iyo na anumang
sabihin mo sa salaysay mong ito ay maaaring gamiting ebidensiya pabor o laban sa
iyo sa anumang hukuman dito sa Pilipinas. Ikalawa, karapatan mong magkaroon
ng pili at sarili mong abogado habang ikaw ay aking tinatanong. Kung ikaw ay
walang pambayad ng abogado, ikaw ay bibigyan ng gobyerno ng abogado na wala
kang aalalahaning anumang kabayaran. Ikatlo, karapatan mong malaman at
mapagpaliwanagan ng mga karapatan mong ito.
TANONG: Nauunawaan mo ba ang mga karapatan mong ito?
SAGOT: Opo.
TANONG: Mayroon ka bang abogado na naririto sa ngayon upang ikaw ay
patnubayan?
SAGOT: Wala po pero ako ay nakahandang magbigay ng salaysay kahit na wala
akong nakaharap na abogado.
TANONG: G. Itaas, ayon din sa batas, ang pagsusuko ng mga karapatan ay
kailangan ding pagtibayin sa harap ng isang abogado, nakahanda ka bang magsuko
ng iyong mga karapatan sa harap ng isang abogado na bigay sa iyo ng gobyerno?
SAGOT: Opo. Nakahanda po ako.
TANONG: Nakahanda ka rin bang lumagda sa isang pagpapatunay na ikaw ay
napagpaliwanagan ng iyong mga karapatan at nauunawaan mo naman ang mga
karapatan mong ito?
SAGOT: Opo.34
Also, the pertinent portion of his (Itaas) supplemental written statement dated
August 30, 1989 is quoted hereunder, to wit:
PALIWANAG: G. Itaas, ang pagsisiyasat na ito ay may kinalaman pa rin sa
pagkaka-ambush at pagpatay kay U.S. Colonel James Rowe. Tulad sa nauna mong
pagbibigay ng salaysay, ipinaalala ko sa iyo na muli ang iyong mga karapatang
manahimik, magkaroon ng pili at sariling abogado at karapatang
mapagpaliwanagan ng mga karapatan mong ito. Nauunawaan mo ba ang mga
karapatan mong ito?
SAGOT: Opo.
TANONG: Nakahanda ka pa rin bang magbigay ng salaysay at ipapatuloy ang
pagbibigay mo ng salaysay?
SAGOT: Opo.
TANONG: Nakahanda ka bang lumagdang muli ng isang pagpapatunay na ikaw
ay napagpaliwanagan ng iyong mga karapatan at handa ka ring isuko ang mga
karapatan mo?
SAGOT: Opo.35
We have consistently declared in a string of cases that the advice or "Paliwanag"
found at the beginning of extrajudicial confessions that merely enumerate to the
accused his custodial rights do not meet the standard provided by law. They are
terse and perfunctory statements that do not evince a clear and sufficient effort to
inform and explain to the appellant his constitutional rights.36 We emphasized that
when the constitution requires a person under investigation "to be informed" of his
rights to remain silent and to have an independent and competent counsel
preferably of his own choice, it must be presumed to contemplate the transmission
of meaningful information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.37 In other words, the right of a
person under investigation "to be informed" implies a correlative obligation on the
part of the police investigator to explain, and contemplates an effective
communication that results in understanding of what is conveyed. Short of this,
there is a denial of the right.38
In the case of People vs. Jara,39 we declared that:
"This stereotyped "advice" appearing in practically all extrajudicial confessions
which are later repudiated has assumed the nature of a "legal form" or model.
Police investigators either automatically type it together with the curt "Opo" as the
answer or ask the accused to sign it or even copy it in their own handwriting. Its
tired, punctilious, fixed, and artificially stately style does not create an impression
of voluntariness or even understanding on the part of the accused. The showing of
a spontaneous, free, and unconstrained giving up of a right is missing."
It must be noted however, that far from being a mere enumeration of the custodial
rights of an accused, the aforequoted portions ("Paliwanag") of the written
statements contain an explanation as to the nature of the investigation that is,
regarding the respective participations of the appellants in the ambush on April 21,
1989 that resulted in the killing of U.S. Col. James Rowe while seriously
wounding his driver, Joaquin Vinuya. They also include an advice that the
appellants may choose not to give any statement to the investigator and a warning
that any statement obtained from the appellants may be used in favor or against
them in court. In addition, they contain an advice that the appellants may engage
the services of a lawyer of their own choice. If they cannot afford the services of a
lawyer, they will be provided with one by the government for free. Thereafter,
both appellants manifested to CIS Investigator Virgilio Pablico their intentions to
give their statements even in the absence of counsel.
Despite the manifestations of the appellants, Investigator Pablico requested for the
legal services of Atty. Bonifacio Manansala to act as counsel for appellant
Continente and Atty. Felimon Corpuz for appellant Itaas. Significantly,
Investigator Pablico disclosed that appellant Continente conferred with Atty.
Manansala in his presence for about half an hour before the investigation
started.40 Nevertheless, the appellant (Continente) maintained his decision to give a
statement even in the absence of counsel. As proof thereof, the appellant
signed41 the "Pagpapatunay" that contains an express waiver of his constitutional
rights in the presence of Atty. Manansala who also signed the same as counsel of
the appellant.
With respect to appellant Itaas, Atty. Felimon Corpuz testified that his legal
services were requested on two (2) occasions to act as counsel for appellant Itaas
after the latter purportedly manifested his intention to waive his rights to remain
silent and to counsel during the investigation. Atty. Corpuz stated that he conferred
with the appellant before the investigations and explained to him his rights under
the constitution and the consequences of waiving said rights. After the explanation,
appellant Itaas decided to sign the "Pagpapatunay", which are entirely written in
Tagalog, a dialect which he understands, in his written confessions respectively
dated August 29, 1989 and August 30, 1989 stating that his constitutional rights to
remain silent and to counsel were explained to him; that he fully understood the
same; and that he was willing to give a written confession even without the
assistance of counsel.42
Appellants Donato Continente and Juanito Itaas likewise impugn their respective
written statements. They allege that the statements appearing therein were supplied
by the CIS investigator. CIS Investigator Pablico however, categorically denied on
rebuttal the allegations of the appellants. Pablico disclosed that during his
investigations of the appellants on separate occasions he simultaneously typewrote
his questions to the appellants including their answers thereto which are done
entirely in Tagalog, thus leaving no room for Pablico to fabricate an answer. After
the investigation, he allowed the appellants to read their respective confessions, 43 a
fact that was admitted by appellant Continente.44 Thereafter, the appellants
voluntarily affixed their signatures on every page of their written confessions.
On July 18, 1989 appellant Continente appeared before City Prosecutor Galicano
of Quezon City and affirmed under oath the truth of his statements by affixing his
signature on the left hand portion of every page of his written
confession.45 Likewise, appellant Itaas, accompanied by Atty. Corpuz, affirmed
under oath the truth of his statements in his written confessions by affixing his
signature on every page thereof before the administering officer. 46
In a desperate attempt to cast doubt on the voluntariness of his confessions,
appellant Continente claims that he was under pressure to read entirely his written
confession before he affixed his signature thereon. The unsubstantiated claim of
the appellant is belied by his own admission that he was treated fairly during the
investigation, thus:
Court: Proceed.
Q: Now, Mr. Witness, since the time you were arrested on June 16, 1989 until this
time, you said you were staying in Camp Crame, am I correct?
A: Yes, sir.
Q: And from the time you were arrested up to this time, you were never harmed by
anybody in Camp Crame, that is also correct?
A: No, sir.
Q: In fact, from the time you were arrested when that blindfold was removed, you
were treated fairly, am I correct?
A: Yes, sir.47
There is also no basis to support the claim of appellant Itaas that he was tortured
into giving a confession and was threatened by the CIS agents to admit the truth of
the same before the administering officer. This Court held that where
the appellants did not present evidence of compulsion or duress or violence on
their persons; where they failed to complain to the officers who administered the
oaths; where they did not institute any criminal or administrative action against
their alleged intimidators for maltreatment; where there appeared to be no marks
of violence on their bodies and where they did not have themselves examined by a
reputable physician to buttress their claim, all these should be considered as factors
indicating voluntariness of confessions.48
It has been established by the evidence that Atty. Filemon Corpuz was present
during both occasions that appellant Itaas was being investigated by Investigator
Virgilio Pablico in Camp Crame and even accompanied the said appellant before
the administering officer. Appellant Itaas did not present any evidence in court to
buttress his bare claim despite the fact that a doctor was summoned for his check
up immediately upon his arrival in Manila after he was previously arrested in
Davao City.49 He did not complain to the administering officer about the threats
and torture he allegedly suffered in the hands of the CIS agents. Neither did he file
any criminal nor administrative complaint against said agents for maltreatment.
The failure of the appellant to complain to the swearing officer or to file charges
against the persons who allegedly maltreated him, although he had all the chances
to do so, manifests voluntariness in the execution of his confessions. 50 To hold
otherwise is to facilitate the retraction of his solemnly made statements at the mere
allegation of torture, without any proof whatsoever.51
The Court also notes that the respective written confessions of appellants are
replete with details which could be supplied only by someone in the know so to
speak.52 They reflect spontaneity and coherence which psychologically cannot be
associated with a mind to which violence and torture have been applied. 53
In particular, appellant Juanito Itaas admitted in his written confession 54 dated
August 29, 1989 that he was an active member of the New People's Army (NPA)
and performed different functions mainly in the province of Davao; that he was
one of the two other members of the NPA who were sent to Manila sometime in
March 1989; that appellant stayed in Merville, Paranaque before moving to an
apartment in Santolan, Pasig together with certain Vicky and her husband Ronnie,
Onie, Bosyo and Bernie; that one day before the ambush on Col. Rowe he (Itaas)
was told by Ronnie to take part in a major operation by the NPA; that he (Itaas)
was not informed by Ronnie about the identity of their supposed target; that on the
following day, Ronnie and the appellant boarded a dark brown Toyota car together
with certain Edgar and James; that he (Itaas) was seated directly behind the driver
beside Edgar and James while Ronnie sat beside the driver; that they were armed
with M-16 rifles while Ronnie was armed with an ultimax; that after several
minutes their car reached a junction (circle) and was running alongside a dark gray
car; that he fired automatic shots toward the dark gray car only after his
companions started firing at the said car; and that after the ambush they drove back
to their apartment in Santolan, Pasig while they were being followed by a back up
car allegedly being occupied by certain Liway, Fred and Eddie. Appellant Itaas
also identified in his written confession55dated August 30, 1989 the gray
Mitsubishi car that they ambushed on April 21, 1989 and the car that they used on
the same date of ambush.
On the other hand, the written statement56 dated June 17, 1989 of appellant Donato
Continente reveals that he had been a member of several revolutionary groups
before becoming a full fledged member of the Communist Party of the Philippines
(CPP) under the Political Assassination Team (PAT) headed by a certain Kit; that
the objective of their team was primarily to conduct surveillance on foreigners and
diplomats; that he did not know Col. James Rowe prior to the shooting incident on
April 21, 1989; that his participation in the ambush was merely for having
conducted a surveillance of the vicinity of the JUSMAG in Tomas Morato Avenue
in Quezon City; that he gathered certain data, specifically: the number of people
and volume of vehicles around the area, the measurement of the streets, as well as
the distance of the JUSMAG Compound from Tomas Morato Avenue; that his
surveillance activity was continued by certain Freddie Abella and Taddy who are
also members of the PAT; and that he came to know the identity of the victim of
the ambush on April 21, 1989, through Freddie Abella who informed him two
days after the incident.
Appellants Continente and Itaas may not validly repudiate the counsels who
rendered them legal assistance during their respective investigations as biased and
incompetent. It must be emphasized that both appellants never signified their
desire to have lawyers of their own choice. In any case, it has been ruled that while
the initial choice of the lawyer in cases where a person under custodial
investigation cannot afford the services of the lawyer is naturally lodged in the
police investigators, the accused really has the final choice as he may reject the
counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused where he never raised any
objection against the former's appointment during the course of the investigation
and the accused thereafter subscribes to the veracity of his statement before the
swearing officer.57
If Atty. Manansala and Atty. Corpuz decided against advising the appellants not to
give their statements involving the ambush, the said lawyers were merely
complying with their oaths to abide by the truth. The counsel should never prevent
an accused from freely and voluntarily telling the truth.58 Whether it is an
extrajudicial statement or testimony in open court, the purpose is always the
ascertainment of truth.59 What is sought to be protected with the constitutional
right to counsel is the compulsory disclosure of incriminating facts. The right is
guaranteed merely to preclude the slightest coercion as would lead the accused to
admit something false, not to provide him with the best defense. 60
We agree with the trial court's observation that the retention by appellant
Continente of Atty. Bonifacio Manansala as his counsel until the early stages of
his case in the lower court and his subsequent decision to engage the legal services
of Atty. Manansala's relative, Atty. Ceferino Manansala, who represented the said
appellant throughout the proceedings in the absence of the former bespeaks of the
trust he had for the said lawyer. On the other hand, while it is admitted that Atty.
Felimon Corpuz served in the military as prosecutor in the Efficiency and
Separation Board of the armed forces, such fact is not sufficient to adjudge the said
lawyer as biased against the appellant (Itaas) in the absence of any concrete
evidence to that effect. The defense also failed to adduce substantial evidence to
support a finding that Atty. Corpuz was short of being a vigilant and effective
counsel for the said appellant.
Moreover, the testimony of prosecution eyewitness Meriam Zulueta confirms to a
large extent the statements made by the appellants in their written confessions.
Zulueta positively identified appellant Juanito Itaas as among the persons on board
a car, directly behind the driver, whose body was half exposed, while firing at the
car of Col. James Rowe at the corner of Tomas Morato Street and Timog Avenue
in Quezon City. She also testified that she had seen appellant Donato Continente
on at least three (3) occasions at the carinderia outside the JUSMAG compound.
She mistook appellant Continente for a tricycle driver on April 17, 1989 while the
latter was simply walking around the premises. The second and third encounters
with the appellant (Continente) took place on April 18 and 19, 1989 while the said
appellant was standing inside the same carinderia.
The defense assails the propriety of the pre-trial identification by Meriam Zulueta
of appellants Donato Continente and Juanito Itaas as pointedly suggestive.
However, there is no sufficient evidence on record to show that the appellants
were previously indicated by the CIS investigators to Zulueta that they were the
perpetrators of the crime.61 Besides, a police line-up is not essential to a proper
identification of the appellants.62
The defense for appellant Itaas further argues that the so-called "positive
identification" of appellant Itaas by Meriam Zulueta cannot be considered reliable
inasmuch as the same was based on a fleeting glimpse of a stranger. To support its
argument, the defense cited cases63 where the Court rejected the testimonies of
prosecution eyewitnesses for not being credible, such as: where the identification
of a stranger is based upon a single brief observation made during a startling
occurrence; where the testimony of the witness defies human nature and reason;
where there are serious inconsistencies and glaring omissions in the testimony of
the eyewitness; and where the witness only identified the suspect after he was
arrested and the witness was informed by the police that the suspect was one of the
killers.
It should be pointed out that the above rulings of the Court are based on the
circumstances peculiar to each of the abovecited cases that do not exactly obtain in
the cases at bench. It is accepted legal precept that persons react differently to a
given situation.64 In the same way, certain witnesses to an unfolding crime may run
or scamper to safety while others would remain transfixed and strive to identify the
perpetrators thereof. As found by the trial court, Zulueta testified in an honest and
straightforward manner that she was about to cross the Tomas Morato Street on
her way to the JUSMAG Compound in Quezon City to attend a practicum in the
JUSMAG Mess Hall when she heard several gunshots. Upon looking at the
direction where the gunshots emanated, she saw persons on board a maroon car
firing at a gray car. Zulueta returned to the sidewalk to seek for cover but could not
find any so she docked and covered her head with her bag while continuously
looking at the persons who were firing at the gray car. In acting the way she did,
Meriam Zulueta was merely reacting naturally to the crime that was unfolding
before her. And while the shooting incident lasted for only about five (5) seconds,
that was all that Zulueta needed under the situation to recognize appellant Itaas
whose body was incidentally half exposed.
The testimony of Meriam Zulueta does not suffer from any serious and material
contradictions that can detract from her credibility. The trial court accorded full
faith and credence to her said testimony. The defense failed to adduce any
evidence to establish any improper motive that may have impelled the same
witness to falsely testify against the appellants. It is well-settled rule that the
evaluation of the testimonies of witnesses by the trial court is received on appeal
with the highest respect because such court has the direct opportunity to observe
the witnesses on the stand and determine if they are telling the truth or not. 65
Article 248 of the Revised Penal Code, as amended, provides:
"ART. 248. Murder.-- Any person who, not falling within the provisions of Article
246 shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua to death if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or means or
persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
 3. By means of inundation, fire, poison, explosion, shipwreck, stranding
of a vessel, derailment or assault upon a railroad, fall of an airship, or by
means of motor vehicles, or with the use of any other means involving
great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive
cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering
of the victim, or outraging or scoffing at his person or corpse."
T: Ikaw ba'y naging full fledged member ng Partido?
S: Nito pong Oktubre 1988.
T: Sino naman ang iyong kinikilalang puno sa inyong Partido?
S: Ganito po iyon. Mayroon kaming sariling grupo na kung tawagin ay PAT. Ang
ibig sabihin nito ay POLITICAL ASSASSINATION TEAM. Ang aming puno ay
tinatawag naming PO o Political Officer. Ang susunod sa kanya ay ang TL o Team
Leader; tapos po ay ang Vice Team Leader; at mga miembro na nagsasagawa ng
activities tulad ng gawaing edukasyon, surveillance at intelligence.
xxx

The trial court erroneously found that the appellants allegedly conspired in the T: Ano ang mga alam mong objectives ng inyong team?
commission of the crimes charged in the instant criminal cases. While it is clear
that the appellants did not even know each other, the lower court opined that the S: , Ang mga objectives po namin ay magsagawa ng surveillance sa mga foreigner
Alex Boncayao Brigade is such a large organization that there is great likelihood
o diplomat. Kinukuha namin ang plate number ng kanilang mga sasakyan, make,
that the participants of the various stages of the crime are unknown to each other.
model at kulay nito at ito ay aming tinitipon.
To justify its position, it cited the ruling in the case of People vs. Geronimo 66 ,
thus:
xxx
"When the defendants by their acts aimed at the same object, one performing one
part and the other performing another part as to complete it, with a view to the T: Nakikilala mo ba itong si Col. James Rowe ng U.S. Army na nagtrabaho sa
attainment of the same object, and their acts, though apparently independent, were JUSMAG?
in fact concerted and cooperative, indicating closeness of personal associations,
concerted action and concurrence of sentiments, the Court will be justified in S: Nakilala ko po lamang siya ng mapabalitang patay siya sa ambush sa may
concluding that said defendants were engaged in a conspiracy." malapit sa JUSMAG noong buwan ng Abril 1989.

We disagree. Article 8 of the Revised Penal Code provides that a conspiracy exists xxx
when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. To prove conspiracy, the prosecution must T: Ano ang iyong naging partisipasyon sa pagkakapatay nitong si Col. Rowe?
establish the following three (3) requisites: (1) that two or more persons come to
an agreement; (2) that the agreement concerned the commission of a crime; and (3) S: Surveillance po lamang ang aking naging papel dito.
that the execution of the felony was decided upon.67 While conspiracy must be
proven just like any criminal accusation, that is, independently and beyond
T: Paano mo naman isinagawa itong pag-surveillance kay Colonel Rowe?
reasonable doubt,68 the same need not be proved by direct evidence and may be
inferred from the conduct of the accused before, during, and after the commission
of the crime.69 S: Nagpunta po ako sa area ng JUSMAG doon sa Tomas Morato Avenue, Q. C. at
nagmanman doon tungkol sa dami ng tao at sasakyang dumadaan tuwing tanghali.
Inalaman ko din ang lawak ng kalsada at layo ng Timog Avenue sa gate ng
The case against appellant Donato Continente is primarily anchored on the written
JUSMAG. Sa report ko ay sinabi ko na mga anim (6) na hakbang ang luwag ng
statement70 that he gave during the investigation of these cases. The pertinent
Tomas Morato Avenue, madalang ang daan ng tao at sasakyan at ang layo ng
portions of his written statements are quoted hereunder, to wit:
Timog Avenue sa gate ng JUSMAG ay may tatlong poste o apat na poste lamang.
T: Ang pagrereport mo bang ito ay ginawa mo ng verbal lamang?
S: Verbal lamang po.
T: Kanino ka naman nagreport?
S: Kay Ka Freddie Abella po.
xxx
T: Bakit mo natiyak na ang ABB ang nagsagawa ng pag-ambush kay Colonel
Rowe?
S: Dalawang (2) araw po matapos ang pag-ambush kay Col. Rowe ay nagkita
kaming dalawa ni Freddie sa aming bahay. Sa pagkikita naming iyon ay
ikinuwento niya sa akin ang mga pangyayari. xxx
It should be emphasized that conspirators are the authors of the crime, being the
ones who decide that a crime should be committed. Strictly speaking, a person
may not be considered a conspirator by his mere subsequent assent or cooperation
in the commission of a crime absent a clear showing, either directly or by
circumstantial evidence, that he participated in the decision to commit the
same;71 in which case, his culpability will be judged based on the extent of his
participation in the commission of the crime.
In the case at bench, appellant Donato Continente is liable for the crimes charged
in these criminal cases only as an accomplice under Article 18 of the Revised
Penal Code. In order that a person may be considered an accomplice in the
commission of a criminal offense, the following requisites must concur: (a)
community of design, i.e., knowing the criminal design of the principal by direct
participation, he concurs with the latter in his purpose; (b) he cooperates in the
execution of the offense by previous or simultaneous acts; and (c) there must be a
relation between the acts done by the principal and those attributed to the person
charged as accomplice.72
The prosecution failed to establish, either directly or by circumstantial evidence,
that appellant Donato Continente was privy to any conspiracy to carry out the
ambush on Col. James Rowe and his driver on that fateful morning of April 21,
1989. The evidence adduced disclose that the participation of appellant Continente
was made only after the plan or decision to ambush Col. Rowe was already
a fait accompli. Continente was merely assigned to the vicinity of the JUSMAG
Compound in Tomas Morato Street, Quezon City, before the shooting incident to
gather certain data, specifically the number of people and volume of vehicles in
the area, the measurement of the streets, and the distance of the JUSMAG
Compound from Tomas Morato Street. Subsequently, Continente reported his
findings to Freddie Abella and that thereafter the latter had taken over the activity.
Significantly, appellant Continente was not even present at the scene of the crime
on April 21, 1989.
The error of the trial court in its appreciation of appellant Continente's
participation in the crimes charged lies in its apparent confusion regarding the
distinction between a conspirator and an accomplice. In view of its effect on the
liability of appellant Continente, the distinction between the two concepts as laid
down by this Court in the case of People vs. de Vera, et al. 73 needs to be reiterated,
thus:
Conspirators and accomplices have one thing in common: they know and agree
with the criminal design. Conspirators, however, know the criminal intention
because they themselves have decided upon such course of action. Accomplices
come to know about it after the principals have reached the decision, and only then
do they agree to cooperate in its execution. Conspirators decide that a crime should
be committed; accomplices merely concur in it. Accomplices do not decide
whether the crime should be committed; they merely assent to the plan and
cooperate in its accomplishment. Conspirators are the authors of the crime;
accomplices are merely their instruments who perform acts not essential to the
perpetration of the offense.
With respect to appellant Juanito Itaas, however, the trial court correctly found that
the evidence against him which consist of his written confession and the
straightforward and credible testimony of prosecution eyewitness Meriam Zulueta,
even if taken independently, are sufficient to convict him. Appellant Itaas
categorically admitted in his written confession that he and his companions fired at
the gray Mitsubishi car of Col. James Rowe at the corner of Timog Avenue and
Tomas Morato Street in Quezon City. Moreover, prosecution witness Meriam
Zulueta positively identified appellant Itaas as one of the persons she saw on board
a car who fired at a gray car at the same time and place where Col. Rowe and his
driver were ambushed.
The shooting of Col. James Rowe and his driver, Joaquin Vinuya, was attended by
treachery. There is treachery when the offender commits any of the crimes against
person, employing means, methods or forms in the execution thereof which tend
directly and especially to ensure its execution, without risk to himself arising from
any defense which the offended party might make. 74 The evidence clearly shows
that the mode of execution was deliberately adopted by the perpetrators to ensure
the commission of the crime without the least danger unto themselves arising from
the possible resistance of their victims. Appellant Itaas and his companions, who
were all armed with powerful firearms, waited for the car of Col. Rowe which was
being driven by Joaquin Vinuya at the corner of Timog Avenue and Tomas Morato
Street in Quezon City. Without any warning, appellant Itaas and his companions
suddenly fired at the said car upon reaching the said place. Hence, the crime
committed for the killing of Col. James Rowe during the said ambush is murder.
With respect to the liability of appellant Itaas for the wounding of Joaquin Vinuya,
it appears that the said victim sustained injuries on his scalp, on the left shoulder
and on the back portion of the left hand from the ambush. Under Article 6 of the
Revised Penal Code, as amended, a felony is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. The evidence adduced by the
prosecution, particularly the opinion of Dr. Jose Santiago in his testimony, is not
sufficient to establish the crime of frustrated murder. This Court notes that the
wounds sustained by the victim are not fatal wounds but merely superficial
wounds.75 The records disclose that Joaquin Vinuya managed to drive the car of
Col. Rowe toward the JUSMAG Compound which is 200 meters away from the
site of the ambush.76 It also appears that Vinuya was treated for his wounds for
only four (4) days at the Clark Air Base Hospital in Pampanga after which he was
brought back to the JUSMAG Compound in Quezon City to recuperate. Hence, the
crime committed as against him is only attempted murder.
In view of the foregoing, appellant Juanito Itaas should be held liable for the
crimes of murder and attempted murder for his direct participation in the killing of
Col. James Rowe and in the wounding of his driver Joaquin Vinuya, respectively.
Due to the absence of any mitigating nor aggravating circumstance in both cases,
the penalty to be imposed on appellant Itaas is reclusion perpetua for the murder
of Col. James Rowe and the medium period of prision mayor for the attempt on
the life of Joaquin Vinuya. Applying the Indeterminate Sentence Law in the latter
case, the maximum of the penalty to be imposed on appellant Itaas is the medium
period of prision mayor and the minimum shall be within the range of the penalty
next lower to that prescribed by the Revised Penal Code for the offense, that
is, prision correccional.
On the other hand, being an accomplice to the crimes of murder and attempted
murder, the penalty to be imposed on appellant Donato Continente shall be the
medium periods of reclusion temporal and prision correccional, respectively.
Applying the Indeterminate Sentence Law in both cases, the maximum of the
penalty to be imposed on appellant Continente as an accomplice to the crime of
murder is the medium period of reclusion temporal and the minimum shall
be prision mayor, while the maximum of the penalty to be imposed on the said
appellant as an accomplice to the crime of attempted murder is the medium period
of prision correccional and the minimum shall be arresto mayor.
WHEREFORE, the appealed Decision of the Regional Trial Court, Branch 88, in
Criminal Cases Nos. Q-89-4843 and Q-89-4844 is hereby MODIFIED, as follows:
In Criminal Case No. Q-89-4843, appellants Juanito Itaas and Donato Continente
are found GUILTY beyond reasonable doubt of the crime of murder, as principal
and as accomplice, respectively. Appellant Itaas, as principal, is hereby sentenced
to suffer imprisonment of reclusion perpetua. Appellant Continente as accomplice,
is hereby sentenced to suffer imprisonment for twelve (12) years of prision mayor,
as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as
maximum. Both appellants Itaas and Continente are ORDERED to pay jointly and
severally the amount of P50,000.00 to the heirs of the victim, Col. James Rowe, by
way of civil indemnity.
In Criminal Case No. Q-89-4844, appellants Juanito Itaas and Donato Continente
are found GUILTY beyond reasonable doubt of the crime of attempted murder, as
principal and as accomplice, respectively. Appellant Itaas, as principal, is hereby
sentenced to suffer imprisonment for six (6) years of prision correccional, as
minimum, to nine (9) years and six (6) months of prision mayor, as maximum.
Appellant Continente, as accomplice, is hereby sentenced to suffer imprisonment
of six (6) months of arresto mayor, as minimum, to two (2) years and four (4)
months of prision correccional, as maximum.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 122895 April 30, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICTOR BACOR, accused-appellant.
MENDOZA, J
This is an appeal from the decision, 1 dated April 13, 1993, of the Regional Trial
Court, Branch 14, Oroquieta City, finding accused-appellant Victor Bacor guilty of
murder and sentencing him to suffer an indeterminate penalty of imprisonment
from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal, as maximum. In
addition, the court ordered accused-appellant to indemnify the heirs of the victim,
Dionesio Albores, in the amount of P50,000.00, and to pay the costs of the
proceedings.
On appeal, the decision was affirmed with modification of the penalty. The Court
of Appeals sentenced accused-appellant to reclusion perpetua and, in accordance
with Rule 124, 13, par. 2 of the Rules on Criminal Procedure, certified the case to
this Court for review.
Upon receipt of the case, the Court gave accused-appellant the opportunity to file
an additional brief if he desired. He did not do so, however. Hence, the case was
considered submitted for resolution.
The full text of the decision of the Court of Appeals reads: 2
Accused-appellant assails the decision of the Regional Trial
Court of Oroquieta City, Branch 14 dared April 13, 1993
convicting him of the crime of MURDER. The decretal portion
of the decision reads:
WHEREFORE, premises considered, the
Court finds the guilt of the accused, Victor
Bacor, has been proved beyond reasonable
doubt, and pursuant to Article 248 of the
Revised Penal Code, there being one
mitigating circumstance of voluntary surrender
without an aggravating circumstance to effect
the [same], the said accused, Victor Bacor, is
hereby sentenced to suffer an indeterminate
penalty of imprisonment ranging from TEN
(10) YEARS and ONE (1) DAY, of Prision
Mayor, as minimum, to SEVENTEEN (17)
YEARS, FOUR (4) MOTHS AND ONE (1)
DAY of Reclusion Temporal, as maximum, to
indemnify the heirs of the victim, Dionisio
Albores in the amount of P50,000.00: to suffer
the other accessory penalties provided for by
law and to pay the cost of the proceedings.
The case with respect to the other accused,
John Doe is hereby ordered sent to the archive,
to be revived as soon as said accused is
identified and arrested.
SO ORDERED.
(Records, p. 102)
The indictment against the accused-appellant and one John Doe
reads:
That on or about March 17, 1991, at about
9:00 o'clock in the evening, more or less, in
barangay Seor, municipality of Sinacaban,
province of Misamis Occidental, Philippines,
and within the jurisdiction of this Honorable
Court, the aforementioned accused with intent
to kill, conspiring, confederating and helping
one another, did then and there, willfully,
unlawfully, feloniously and treacherously
attack, assault and shoot one DIONISIO
ALBORES with the use of a shotgun while the
latter was inside his dwelling, unaware,
unarmed and defenseless, thereby inflicting
multiple gun shot wounds on different vital
parts of his body causing his [instantaneous]
death.
CONTRARY TO LAW, with qualifying
circumstance of treachery and ordinary
aggravating circumstance of dwelling.
(Records, p, 1)
Upon arraignment on September 4, 1991, accused-appellant
pleaded not guilty. Trial then ensued. After the prosecution
rested its case, the defense demurred to the evidence on the
ground that accused's extrajudicial confession which is the only
piece of evidence connecting him to the commission of the
murder, is in admissible for any purpose. The Omnibus Motion
To Demur and Objection To The Admissibility Of Exhibit B For
The Prosecution was denied by the trial court in an order dated
June 4, 1992 after which the defense offered the testimonies of
the accused himself and the latter's father, Cesar Bacor. Their
main line of defense was that at the time the crime was being
perpetrated, accused Victor Bacor was at home grating coconuts.
It was however also established in the course of their testimony
that Barangay Seor was only about one kilometer from
Barangay SK Avancea where accused Victor lived with his
parents and was accessible by means of transportation. (TSN,
October 27, 1992, p. 49-67).
The facts as established by the prosecution's evidence are
summarized in the people's brief as follows:
At about 9:00 o'clock in the evening of March
17, 1991, Julian Albores was resting at the
living room of his house at Barangay Seor,
Sinacaban, Misamis Occidental (TSN, Oct. 10,
1991, pp. 2-5). His companions in the house
were his son Dionisio and the latter's common-
law wife Delia, who were then eating in the
kitchen (TSN, ibid., pp. 5-6). Suddenly, Julian
heard a gunfire followed by Delia's
exclamation that Dionisio had fallen down on
the floor (ibid). Consequently, Julian rushed to
the kitchen and found Dionisio lying face
down on the kitchen floor made of bamboo
slats (TSN, Oct. 10, 1991, pp. 4-8). As Julian
tried to move Dionisio, blood oozed from his
right armpit (ibid.). Julian shouted for his
neighbor's help but no one helped him (TSN,
Oct. 10, 1991, pp.6-7). Immediately,
thereafter, Julian brought his wounded son to
the hospital for treatment but just a few
minutes after arrival there, his son died (TSN,
Oct. 10, 1991, pp. 7-8; Exh. "A").
On March 18, 1991, Dr. Marlene Awayan,
Municipal Health Officer of Sinacaban,
Misamis Occidental, conducted a post-
mortem examination of the remains of
Dionisio Albores (TSN, Nov. 19, 1991, pp. 2-
5; Exh. "C"). Based on her examination, Dr.
Awayan found that Dionisio Albores sustained
"multiple gunshot wounds, entrance at the
right anterior chest, 3 inches (in) depth" and
"multiple protrusions hard object at the left
posterior chest" and that the cause of his death
was "internal hemorrhage secondary to
multiple gunshot wounds" (Exh. "C", "C-1"
"C-2").
On June 6, 1991, appellant approached Jesus
Bernido, Chief of the Intelligence Section of
the Sinacaban Police Station and told the latter
that he was the one responsible for the killing
of Dionisio Albores (TSN, Nov. 19, 1991; p.
6). In view thereof, Bernido asked appellant
what prompted him to surrender and appellant
told him that it was due to his guilty
conscience (ibid.). Consequently, Bernido,
accompanied by SPO3 Maharlika Ydulzura,
Chief Investigator of the Sinacaban Police
Station, and two (2) other police escorts
brought appellant to the Public Attorney's
Office (PAO) in Oroquieta City (TSN, Oct. 22,
1991, pp. 3-4). Upon arrival at the PAO
premises, SPO3 Ydulzura informed PAO Atty.
Meriam Anggot that appellant wanted to make
a confession of a crime he had committed
(TSN, Nov. 12, 1991, pp. 3-4). Thereafter, in
her presence, appellant was asked by the
policemen if he had a lawyer and appellant
replied that he had none (TSN, Nov. 12, 1991,
pp. 3-4). Appellant was also asked if he
wanted to avail of the services of the PAO and
he answered in the affirmative (TSN, Nov. 12,
1991, pp. 3-4). Consequently, Atty. Anggot
requested the policemen to leave her and
appellant alone inside the office and the
policemen readily agreed and stayed outside
(ibid.). She then inquired if appellant was not
intimidated, coerced or forced and whether
appellant was promised any reward (ibid.). She
also informed appellant that he had the right to
remain silent and not to answer questions
which may incriminate him and that any
statement he will make may be used against
him in the future (ibid.). After being informed
of such facts, appellant still declared that he
was going to confess because he had
committed a crime (TSN, Nov. 12, 1991, pp.
3-4).
During the taking of appellant's confession, in
the presence and with the assistance of PAO
Atty. Anggot, SPO3 Ydulzura likewise
reminded appellant in the Visayan dialect,
which he knew and spoke, that he had the right
to remain silent and the right against self-
incrimination and to secure the services of a
lawyer of his own choice to assist him in the
taking of his confession (TSN, Oct. 22, 1991,
pp. 6-8). Despite such reminder, appellant still
agreed and accepted the appointment of PAO
Atty. Meriam Anggot as his lawyer to assist
him during the taking of his affidavit of
confession (Exhs. "B", "B-3", "B-4"; TSN,
Oct. 22, 1991, pp. 3-7; TSN, Nov. 12, 1991,
pp. 4-7). In his affidavit which was taken in
the typewriter by SPO3 Ydulzura, appellant
acknowledged and admitted that he was the
one who shot Dionisio Albores at 9:00 o'clock
in the evening of March 17, 1991 at Barangay
Seor, Sinacaban, Misamis Occidental (Exhs.
"B", "B-11", "B-12"; TSN, Oct. 22, 1991, pp.,
8-15). He declared therein that he shot
Dionisio Albores because the latter threatened
to kill him and because he knew that Dionisio
was an ex-convict who had killed somebody
with treachery in the past (TSN, Oct. 22, 1991,
pp. 13-15; Exhs. "B", "B-15").
Afterwards, SPO3 Ydulzura read the contents
of appellant's affidavit to him, in the presence
and with the assistance of PAO Atty. Anggot
(TSN, Oct. 22, 1991, p. 15; Exh. "B").
Subsequently, appellant, after correcting the
date, signed his name on the affidavit (TSN,
Oct. 22, 1991, pp. 15-17). Thereafter,
appellant subscribed and swore to the veracity
of his affidavit, before Atty. Nora Montejo-
Lumasag, Clerk of Court of the Regional Trial
Court, Oroquieta City (TSN, Oct. 22, 1991,
pp. 24-26). Before signing the affidavit, Atty.
Lumasag read to appellant the contents thereof
and informed him of his constitutional rights
to remain silent, against self-incrimination and
to counsel of his own choice. She also
informed appellant about the consequences of
his affidavit and that it may be used as
evidence against him. She also asked him
whether he understood the contents of the
affidavit (ibid.). Subsequently, appellant was
asked if the statements in the affidavit are true
and correct and he declared that the statements
therein are true and correct and that he was
willing to sign the affidavit on his own free
will (TSN, Oct. 22, 1991, pp. 24-26; Exhs.
"B", "B-l" to B-2").
(Rollo, pp. 45-51)
Accused-appellant now assigns the following errors:
I
THE COURT ERRED IN NOT HOLDING
THAT THE EXTRAJUDICIAL
CONFESSION OF APPELLANT IS
INADMISSIBLE IN EVIDENCE.
II
THE COURT ERRED IN NOT GIVING
WEIGHT TO THE EVIDENCES FOR
APPELLANT.
III
THE COURT ERRED IN FINDING
APPELLANT GUILTY.
The main thrust of these assignment of errors is the
inadmissibility of appellant's extrajudicial confession on the
ground that his waiver of his right to remain silent was obtained
sans observance of the procedural safeguards embodied in
Article III, Section 12 of the 1987 Philippine Constitution, to
wit:
Sec. 12.(1) Any person under investigation for
the commission of an offense shall have the
right to be informed of his right to remain
silent and to have competent and independent
counsel preferably of his own choice. If the
person cannot afford the services of counsel,
he must be provided with one. These rights
cannot be waived except in writing and in the
presence of court.
xxx xxx xxx
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
xxx xxx xxx
(Emphasis supplied).
There is no merit in the contention.
Atty. Miriam D. Angot, the PAO lawyer who assisted the
appellant testified that before the in-custody interrogation
started, she even asked the police escorts then present to leave
the room. She then ascertain from accused-appellant Victor
Bacor himself that the latter was not cajoled nor coerced into
making the intended confession and apprised him further of his
right to remain silent and not to answer any question propounded
to him. He was warned that statements made by him might be
used against him in the future, Bacor then intimated that he was
confessing to the crime for the simple reason that he had done it
(TSN, November 12, 1991, pp. 70-71. He was again informed of
his constitutional rights by SPO3 Maharlika Ydulzura before the
actual taking of his extrajudicial confession (Ibid, Exhibit B-3).
Despite all these, the appellant proceeded into confessing that he
was the one who killed the victim Dionesio Albores.
The pertinent portions of said extrajudicial confession as
translated from the Visayan dialect to the English language are
as follows:
PRELIMINARY: Mr. Victor W. Bacor, you
are presently under investigation regarding the
MURDER of Ignacio Ampo and Dionisio
Albores. Before proceeding with the
investigation, we will inform you of your
constitutional rights. You have the legal right
to remain silent and not to answer questions
which you think might incriminate you.
Anything you say may be used in evidence
against you in any court of the Philippines.
You have the right to counsel of your own
choice to assist you in today's investigation. If
you cannot afford to pay the services of a
lawyer but you want to have one, a lawyer will
be provided by the government to assist you
free of charge. Do you understand?
ANSWER: Yes, I understand. I desire to have
a lawyer but I cannot afford to pay one as of
now.
QUESTION: In front of you now is a lawyer
of the Public Attorney's Office. Do you accept
her as your counsel to assist you in this
investigation?
ANSWER: Yes, Sir I accept. (Atty. Miriam O.
Angot is officially appointed as lawyer of Mr.
Victor W. Bacor during this Interrogation).
xxx xxx xxx
14 Question: Regarding the death of Dionisio
Albores, do you have any knowledge of the
facts surrounding that?
Answer: Yes, Sir. I was the one who shot
Dionesio Albores.
15 Question: When and where was this
killing?
Answer: Last March 17, 1991, at 9:00 o'clock
in the evening, in Barangay Seor, Sinacaban,
Misamis Occidental.
16 Question: Was there someone with you
during the killing?
Answer: There was, Sir. Berwin Rosales was
with me during the killing.
17 Question: Please tell us what happened.
Answer: I had been drinking a little that night,
Berwin Rosales mentioned something about
my adversary, Dionesio Albores. So, we got
the weapon which was then in the possession
of the Rosales family, the same weapon used
in killing Ignacio Ampo. When we got to
Dionesio Albores' house, I was not able to
shoot him at first because he was lying down
with his wife. Then at nine o'clock the
evening, Dionesio Albores got up and
approached his wife who was then eating in
the kitchen. I shot him. He was hit near his
armpit. That caused his death.
QUESTION: What was the reason why you
killed Dionesio Albores?
ANSWER: Before that, Dionesio Albores and
I had a quarrel, and he threatened to kill me. I
heard that Dionesio Albores had previously
killed someone by means of treachery and that
he had been imprisoned in Muntinglupa. So on
March 17, 1991, I thought of killing him first.
QUESTION: Where now is the weapon which
you used in killing Dionesio Albores, the same
weapon used by Charlie Manliquez in killing
Ignacio Ampo?
ANSWER: According to Laloy Rosales, the
weapon was redeemed by the person who
pledged it to him.
QUESTION: Why are you now here before us
and telling us what had happened?
ANSWER: I voluntarily surrendered myself to
Pfc. Jesus Bernido of the Sinacaban Police
Station because I could no longer bear a guilty
conscience.
QUESTION: Were you coerced, manhandled
or given money in order to make this
confession?
ANSWER: No, Sir. Everything is out of my
own free will.
QUESTION: Do you have anything more to
say?
ANSWER: No more, Sir.
QUESTION: Are you willing to sign this
statement you have made under oath in
accordance with law?
ANSWER: Yes, I am ready to do so, Sir.
(Records, pp. 4-6)
All throughout the custodial investigation, Atty. Miriam Angot
of the Public Attorney's Office (PAO) took pains to explain
meaningfully to the accused each and every query posed by
SPO3 Maharlika Ydulzura. Accused then stamped his approval
to the extrajudicial confession by affixing his signature on each
and every page thereof in the presence of counsel Miriam Angot
(Exhibits B, B1, B-2, B-8, B-19, B-20). Consequently, there was
an effective waiver of the right to remain silent (People vs.
Ruelan, 231 SCRA 650).
Here is therefore a clear case of a criminal who had hearkened to OR
the proddings of conscience. And by so doing, he had wittingly CHEST.
furnished the missing link necessary for his conviction.
CAUSE
Well-entrenched in our jurisdiction is the evidentiary rule that an OF
extrajudicial confession corroborated by evidence of the corpus DEATH:
delicti is sufficient to support a conviction. (Rule 133, Section 3,
Rules of Court). INTERNA
L
The fact of death and the criminal agency, elements which are HEMORR
constitutive of the corpus delicti, had been amply established by HAGE
the death certificate (Exhibit "A") and the medical certificate SECOND
(Exhibit "C") the veracity of which had been affirmed on the ARY TO
witness stand by the examining physician. Details of the findings MULTIPL
therein are as follows: E
GUNSHO
POST MORTEM FINDINGS: T
WOUNDS
BODY: .
MULTIPL
E (Records,
GUNSHO p. 118)
T
WOUNDS In sum: Bacor informed the police that he shot Dionesio
, Albores; that the latter was hit near the armpit; and that the latter
ENTRAN died as a consequence thereof. The evidence of the corpus
CE AT delicti shows conformance of the exrajudicial statement with
THE reality. The facts dove-tail with the confession of the accused.
RIGHT There is no reason to reject the same.
ANTERIO
R CHEST, On the other hand, what can not be believed is Victor Bacor's
3 INCHES subsequent denials and alibi. Alibi is an inherently weak and
DEPTH. unreliable defense because it is easily contrived and fabricated
(People vs. Amiguin, 229 SCRA 166; People vs. Calope, 229
MULTIPL SCRA 413; People vs. Fuertes, 229 SCRA 289). More so when
E it is established mainly by accused himself or his relatives.
PROTRU (People vs. Torres, 232 SCRA 32; People vs. Apolonia, 235
SIONS SCRA 124). For alibi to prosper, the accused must show that it
HARD was physically impossible for him to be at the locus criminis at
OBJECT the time of the commission of the felony (People vs. Servillon,
AT THE 236 SCRA 385; People vs. Apa-ap, 235 SCRA 468; People vs.
LEFT Barte, 230 SCRA 401). And, as already stated, the place where
POSTERI the accused-appellant claimed to be was only one kilometer
away from the scene of the crime and easily accessible.
In cases involving crimes [committed] prior to the effectivity
date of R. A. 7659 (An Act To Impose The Death Penalty On
Certain Heinous Crimes, Amending For That Purpose The
Revised Penal Code, As Amended Other Special Penal Laws,
And For Other Purposes), it is mandatory for the courts to
reduce the capital punishment to reclusion papetua in view of
the constitutional proscription embodied in Article [III], Section
19 (1) of the organic act. This rule however applies only when
the death penalty should be imposed after giving proper
consideration to the presence of mitigating and aggravating
circumstances (People vs. Muoz, 170 SCRA 1071; People vs.
de la Cruz, 216 SCRA 476). In People vs. Muoz, the Supreme
Court siting en banc had the occasion to rule:
A reading of Section 19(1) of Article III will
readily show that there is really nothing
therein which expressly declares the abolition
of the death penalty. The provision merely
says that the death penalty shall not be
imposed unless for compelling reasons
involving heinous crimes the Congress
hereafter provides for it and, if already
imposed shall be reduced to reclusion
perpetua. The language, while rather
awkward, is still plain enough. And it is a
settled rule of legal hermeneutics that if the
language under construction is plain, it is
neither necessary nor permissible to resort to
extrinsic aids, like the records of the
constitutional convention, for in interpretation.
xxx xxx xxx
The question as we see it is not whether the
framers intended to abolish the death penalty
or merely to prevent in imposition. Whatever
the intention was, what we should determine is
whether or not they also meant to require a
corresponding modification in the other
periods as a result of the prohibition against
the death penalty.
It is definite that such a requirement, if there
really was one, is not at all expressed in
Article III, Section 19(1) of the Constitution or
indicated therein by at least clear and
unmistakable implication. It would have been
so easy, assuming such intention, to state it
categorically and plainly, leaving no doubt as
to its meaning. One searches in vain for such a
statement, express or even implied. The writer
of this opinion makes the personal observation
that this might be still another instance where
the framers meant one thing and said another
or strangely, considering their loquacity
elsewhere did not say enough.
xxx xxx xxx
. . . (W)e return to our original interpretation
and hold that Art III, Sec. 19(1) does not
change the periods of the penalty prescribed
by Art. 248 of the Revised Penal Code except
only insofar as it prohibits the imposition of
the death penalty and reduces it to reclusion
perpetua. The range of the medium and
minimum penalties remains unchanged.
xxx xxx xxx
Coming back to the case at bar, we find that
there being no generic or mitigating
circumstance attending the commission of the
offenses, the applicable sentence is the
medium period of the penalty prescribed by
Article 248, which conformably to the new
doctrine here adopted and announced, it is
still reclusion perpetua.
In the light of the aforecited Supreme Court ruling we are
therefore bound to consider in fixing the appropriate penalty to
be imposed herein the whole range of the penalty prescribed
under Article 248 of the Revised Penal Code for the crime of
murder, i.e., reclusion temporal in its maximum period to death.
Conformably with Article 77 in relation to Article 64 (no. 4) of
the Revised Penal Code, each of the three distinct penalties
given under Article 248 shall form a period and the penalty to be
 imposed shall be determined after reasonably offsetting the
mitigating and aggravating circumstances. In this light, we
impose the medium period which is reclusion
perpetua considering that the mitigating circumstance of
voluntary surrender of the accused was offset by the aggravating
circumstance of dwelling.
WHEREFORE, the judgment of conviction of the lower court is
hereby AFFIRMED with the MODIFICATION that the sentence
imposed on accused-appellant Victor Bacor is RECLUSION
PERPETUA together with its accessory penalties and to
indemnify the heirs of the victim in the amount of P50,000.00.
Furthermore, in view of the penalty of reclusion perpetua to be
imposed on appellant Bacor, this case is hereby CERTIFIED and
the entire record thereof is elevated to the honorable Supreme
Court in accordance with Rule 124, Section 13 of the Revised
Rules of Court (People vs. Cruz, 203 SCRA 683 [1991]).
SO ORDERED.
We have examined the evidence in this case and considered the arguments of the
parties. We now find that the Court of Appeals correctly affirmed the conviction of
accused-appellant. The findings and conclusions of the appellate court as
contained in the aforequoted decision are accordingly adopted by the Court.
The main question in this case is whether accused-appellant validly waived his
right to remain silent and, therefore, whether his confession is admissible in
evidence against him. The question turns on the application of Art. III, 12(1) of
the Constitution which provides:
Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
This is a corollary of the right against self-incrimination found in Art. III, 17. It
has been noted that the Constitution has separated the right of persons under
custodial investigation from the traditional right against self-incrimination not only
to emphasize but also to guarantee the right to proper treatment of those under
investigation. 3
To implement the right of persons under custodial interrogation, R.A. No. 7438,
2(d) 4 requires that any confession must be in writing and signed by the
confessant in the presence of his counsel.
Decisions of this Court hold that for an extrajudicial confession to be admissible in
evidence, it must satisfy the following requirements: (1) the confession must be
voluntary; (2) it must be made with the assistance of a competent and independent
counsel preferably of the confessant's choice; (3) it must be express; and (4) it
must be in writing. 5 The Court finds that accused-appellant's confession satisfies
the said requirements.
First. Accused-appellant's confession, as quoted in the decision of the Court of
Appeals, leaves no doubt as to its voluntariness and spontaneity. Accused-
appellant does not deny that he surrendered to the police on June 6, 1991, almost
three months after the fatal shooting of Dionesio Albores, and confessed to the
crime because he "could no longer bear a guilty conscience." In his testimony
before the trial court, he admitted that the signature on pages 1, 2, and 3 of his
sworn confession (Exh. B) was his without any claim that he was forced, coerced
or threatened to make the confession. 6 Indeed the details contained in his
confession could have been known to accused-appellant alone.
Second. Accused-appellant claims that he gave the confession without being
warned of his constitutional rights. This is not true. The records shows that he was
advised of his rights, particularly the right to remain silent, not only once but
thrice: first, by his counsel, Atty. Meriam Anggot of Public Attorney's Office
(PAO): second, SPO3 Maharlika Ydulzura, the investigator who took accused-
appellant's confession; and lastly, by the branch clerk of the court of the Regional
Trial Court of Oroquieta City, Atty. Nora Montejo-Lumasag, before whom
accused-appellant swore to the veracity of his confession. Each time, he was asked
whether he was willing to give statement and he said he was. This is
sufficient. 7 Contrary to the accused-appellant's contention, there is no need for a
separate and express written waiver of his constitutional rights. 8 Accused-
appellant was not arrested. He presented himself to the authorities to confess to the
crime because, he said, he was being bothered by his conscience. By voluntarily
executing his extrajudicial confession, which he did in the presence of and with the
assistance of counsel and after having been informed of his constitutional rights,
accused-appellant effectively waived his right to remain silent. 9
Accused-appellant, when asked, said he wanted to have the assistance of counsel.
Atty. Anggot of PAO was appointed counsel de officio to assist accused-appellant
and the latter expressly accepted her appointment as his counsel before giving his
confession. 10 As this Court has held, a PAO lawyer can be considered an
independent counsel within the contemplation of the Constitution considering that
he is not a special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to that of the accused-
appellant. 11 Thus, the assistance of a PAO lawyer in the present case satisfies the
constitutional requirement of a competent and independent counsel for the
accused.
Judging from Atty. Anggot's testimony before the trial court, there is no reason not
to consider her a competent and independent counsel. She testified that before the
taking of accused-appellant's confession, she requested SP03 Ydulzura and the
other policemen to step out of the room so that she could privately confer with the
accused-appellant, free from pressure or intimidation. She also testified on the
circumstances surrounding her appointment as counsel for accused-appellant. She
said: 12
ATTY. ACOSTA ON DIRECT
WIT. MERIAM ANGGOT
Q Will you kindly inform this Honorable
Court what public office if any were you
holding in June, 1991?
A I am connected with the Public Attorneys
Office based in Oroquieta City with the
designation as Public Attorney II.
Q On June 6, 1991, at about 3:00 o'clock in the
afternoon were you in your office?
A Yes.
Q Do you know who came to your office at
that time on that date?
A There were more or less four (4) or five (5)
persons one of them is Victor Bacor, the
accused in this case, the other one is
Policeman Ydulzura and the two escorts whom
I believe [were] policeman and I could nor
longer mention their names.
Q What was their purpose in coming to your
office?
A They told me that subject Victor Bacor who
is the accused in this case is going to make his
confession of a certain crime that he has
committed.
Q Since he was going to make a confession
regarding his commission of a crime, you
mean he was there to ask you to represent him
as his lawyer during that time?
A Well, I was told that the subject person is
going to make a confession and he was asked
whether he wanted to have his lawyer or
whether he has a lawyer but he said that he has
none and he was again asked by the policeman
whether he will avail [of] the services of the
Public Attorney's Office and he said that he
will.
Q Before the witness was to make detailed
confession/statements of the crime that he had
committed, what if any did you inform him
regarding his rights?
A Before the interrogation started, I requested
the policemen who escorted the subject person
to leave us and after they left the office and
stayed outside, I asked the subject person
whether he was not intimidated, coerce[d] or
forced and informed him of the consequences
of his making the confession, and whether he
was not promised of any reward in order to
make such confession and I further told him
that he has the right to remain silent and not to
answer any question propounded to him and
that his statement might be used against him in
the future.
Q And what if any was his reply?
A Well, he said that he is going to confess
because he has done the crime.
 Q Was that confession reduced to writing?
A Yes, it was typewritten.
xxx xxx xxx
Q As the affidavit was formed, what was done
to its contents if there was?
A I was present all the time when the
interrogation was conducted and in fact, I
explain[ed] to him the question or every
question propounded and I let him understand
and explained to him that his answers to the
questions are very crucial to his person.
Q Do you still recall before whom this
affidavit was subscribe[d] and sworn to?
A It was subscribed and sworn to before Atty.
Nora Montejo- Lumasag.
SP03 Ydulzura, on the other hand, testified, thus: 13
ATTY. ACOSTA ON DIRECT
WIT. MAHARLIKA YDULZURA
Q Will you kindly inform this Honorable
Court what position if any were you holding in
June 1991?
A I am the chief investigator of the Sinacaban
Police Station.
Q On June 6, 1991 in the afternoon of that
date, where were you?
A I, together with Victor Bacor and some of
my co-members of the PNP, of the PNP, were
in the Office of the PAO.
Q What was your purpose in going to the
Office of the PAO on that date?
A I was going to take the confession of Victor
Bacor in the presence of a lawyer.
xxx xxx xxx
Q What was done while you were in the office
of the PAO?
A I began to extract the confession of Victor
Bacor.
Q Before you extract his confession, was he
represented by a lawyer?
A Yes.
Q Who was the lawyer representing him at that
time?
A Atty. Meriam Anggot.
Q Will you kindly inform this Honorable
Court how . . . you [took] the confession of
Victor Bacor?
A I did the writing in the presence of Atty.
Meriam Anggot and put it directly in the
typewriter.
Q Who [typed] the contents in that affidavit?
A I was the one.
Q In what dialect or language used?
A That was in Visayan dialect, sir.
Q Was it taken in the language or dialect
known to Victor Bacor?
 A Yes, sir. administering the oath to accused-appellant, read the affidavit of confession to him
and informed him of his rights and the consequences of his confession. Accused-
xxx xxx xxx appellant stood pat on his decision to tell it all. As Branch Clerk of Court Montejo-
Lumasag testified: 14
Q You said that you are the one who [typed]
this affidavit, kindly inform this Honorable ATTY. ACOSTA ON DIRECT
Court what was your first question that was
propounded upon Victor Bacor? WIT. NORA MONTEJO-LUMASAG

A Yes, I inform[ed] him that he has the right Q What position if any were you holding in
to remain silent that he has the right not to June, 1991 Atty. Nora Montejo-Lumasag?
answer any question propounded on him that
may incriminate him and that he has the right A I am the Clerk of Court of Regional Trial
to secure a lawyer of his choice to assist him Court of Oroquieta City.
during the taking of the confession.
Q Did you report for duty on June 6, 1991?
Q When that question was propounded upon
Victor Bacor, was Atty. Meriam Anggot
A Yes.
present?
Q Do you recall on that date a certain person
A Yes, sir. by the name of Victor Bacor who was sworn
to your office?
Q Was that question placed in the affidavit of
Victor Bacor?
A Yes.

A Yes, that is under the preliminary question Q Would you kindly inform this Honorable
your Honor.
Court who accompan[ied] him in going to
your office?
Q You said the accused was represented by
Atty. Meriam Angot during the taking of his A It was SPO3 Maharlika Ydulzura.
affidavit did the accused confirm or agree that
he should be represented by Atty. Anggot
during the taking of his affidavit? Q Who else?

A Yes, sir. A Also Atty. Meriam Anggot.

Q Was that also shown in the affidavit? Q What was then purpose [for going] to your
office?
A Yes, sir, I made him place his name.
A Then purpose was to swear before me
[accused-appellant's] extra-judicial confession.
Not only was the confession signed by accused-appellant with the assistance of
counsel, it was also sworn to by him before the branch clerk of court who, before
Q I am showing to you an affidavit which is
found on pages 4 to 6 of the record which [are]
now marked as Exhibits B, B-1 and B-2,
respectively, kindly examine the same and
inform this Honorable Court what relation this
affidavit has with that affidavit that you have
mentioned which was sworn to before you?
A This is the very affidavit that was sworn
before me by Victor Bacor.
xxx xxx xxx
Q Before Victor Bacor affix[ed] his signature
on this Exhibits B, B-1 and B-2, what if any
was done as to the content of this affidavit?
A I read to him the contents of the affidavit
and inform[ed] him of his constitutional rights,
that he has the right to remain silent, that he
has the right to have a counsel of his own
choice and about the consequence of his act,
that it might be used as evidence against him
in the future and further ask[ed] him whether
he understood the contents of the affidavit and,
after that he sign[ed] the confession.
Q Did you read the contents of the affidavit
word for word?
A Yes, sir.
Q After you read to him the contents of the
affidavit what if any did he tell you?
A He said that the statements in the affidavit
are true and correct and that he is willing to
sign the same in his own free will.
Q After signing this affidavit what if any did
you say to him?
A I requested him to swear under oath as to the
truthfulness of the same.
Q And did he do so?
A Yes, sir.
Well-settled is the rule that a confession is presumed to be voluntarily and validly
made unless the contrary is proven and that the burden of proof is upon the party
who claims the contrary. 15 In this case, this presumption has not been overcome.
Not only is accused-appellant's confession replete with details that only he could
have supplied, but the circumstances surrounding its execution also belie his claim
that he did not validly waive his right to remain silent. Hence, both the trial and the
appellate courts correctly convicted accused-appellant on the basis of the
confession since, as they noted, it was corroborated by evidence of the corpus
delicti which dove-tails with the confession. 16
Against this evidence of the prosecution, accused-appellant's alibi cannot prevail.
He claimed that he was at his parents' house at SK Avancena, Sinacaban, Misamis
Occidental at the time of the killing of Dionesio Albores. His father, Cesar Bacor,
admitted, however, that their house in Barangay Avancena is just one (1) kilometer
from the house of the victim in Barangay Seor where the crime was committed
and that transportation was easily available. 17 It was thus not impossible for
accused-appellant to have gone to Barangay Seor to commit the crime.
Even if we consider accused-appellant's defense of alibi a retraction of his
confession, the same is of no moment. In this jurisdiction, retractions of
confessions are generally considered unreliable and are looked upon with disfavor.
The asserted motives for the repudiation of a confession are commonly held
suspect and subject to serious doubt. 18
Finally, we hold that the Court of Appeals correctly sentenced accused-appellant
to reclusion perpetua. When the crime of murder was committed on March 17,
1991, the same was punishable under Art. 248 of the Penal Code by reclusion
temporal, in its maximum period, to death. Each of the three (3) distinct penalties
covered thereby forms a period 19 and the penalty to be imposed is determined
after reasonably offsetting the attending mitigating and aggravating
circumstances. 20 In the instant case, the mitigating circumstance of voluntary
surrender of the accused-appellant is offset by the aggravating circumstance of
dwelling considering that the latter circumstance is not absorbed by the qualifying
circumstance of treachery. 21
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, Puno, Quisumbing and Buena, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 117401 October 1, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BERNARDO QUIDATO, JR., accused-appellant.
ROMERO, J.:
Before us is an appeal from the judgment of the Regional Trial Court of Davao,
Branch 4, dated March 2, 1994, finding accused-appellant Bernardo Quidato, Jr.
guilty of the crime of parricide.
On January 17, 1989, accused-appellant was charged with the crime of parricide
before the Regional Trial Court of Davao. The information reads as follows:
The undersigned accuses BERNARDO QUIDATO, JR. of the
crime of Parricide under Article 246 of the Revised Penal Code,
committed as follows:
That on or about September 17, 1988, in the Municipality of
Kaputian, Province of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with Reynaldo
Malita and Eddie Malita, who are charged for (sic) Murder in a
separate information, did then and there wilfully, unlawfully and
criminally, with the use of a bolo and an iron bar, assault, hack
and stab his father, Bernardo Quidato, Sr., on the different parts
of his body, thereby inflicting upon him wounds which caused
his death, and further causing actual, moral and compensatory
damage to the heirs of the victim.
Contrary to law. 1
Accused-appellant's case was tried jointly with the murder case filed against his
co-accused Reynaldo Malita and Eddie Malita who, however, withdrew their "not
guilty" plea during the trial and were accordingly sentenced. Thus, only accused-
appellant's case was tried on the merits.
The prosecution, in offering its version of the facts, presented as its witnesses
accused-appellant's brother Leo Quidato, appellant's wife Gina Quidato, as well as
Patrolman Lucrecio Mara. Likewise, the prosecution offered in evidence affidavits
containing the extra-judicial confessions of Eddie Malita and Reynaldo Malita.
The two brothers were, however, not presented by the prosecution on the witness
stand. Instead, it presented Atty. Jonathan Jocom to prove that the two were
assisted by counsel when they made their confessions. Similarly, the prosecution
presented MTC Judge George Omelio who attested to the due and voluntary
execution of the sworn statements by the Malita brothers.
Based on the foregoing pieces of evidence, the prosecution's version of the facts is
as follows:
Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr.
and Leo Quidato. Being a widower, Bernardo lived alone in his house at Sitio
Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen hectares of coconut
land in the area.
On September 16, 1988, Bernardo, accompanied by his son, herein accused-
appellant, and two hired hands, Reynaldo Malita and Eddie Malita, went to Davao
City to sell 41 sacks of copra. After selling the copra, Bernardo paid the Malita
brothers for their labor, who thereafter left. Bernardo and accused-appellant went
back to Sitio Libod that same day.2
According to Gina Quidato, on the evening of the next day, September 17, 1988,
accused-appellant and the Malita brothers were drinking tuba at their house. She
overheard the trio planning to go to her father-in-law's house to get money from
the latter. She had no idea, however, as to what later transpired because she had
fallen asleep before 10:00 p.m.3 Accused-appellant objected to Gina Quidato's
testimony on the ground that the same was prohibited by the marital
disqualification rule found in Section 22 of Rule 130 of the Rules of Court. 4 The
judge, acknowledging the applicability of the so-called rule, allowed said
testimony only against accused-appellant's co-accused, Reynaldo and Eddie.
As adverted to earlier, the Malita brothers confessed to their participation in the
crime, executing affidavits detailing how Bernardo was killed. Their version
shows that Eddie had been living with accused-appellant for the past four years. At
around 6:00 p.m. of September 17, 1988, accused-appellant asked Reynaldo to
come to the former's house to discuss an important matter. Upon Reynaldo's
arrival at accused-appellant's house, he saw that his brother Eddie was already
there. They started drinking beer. The Malita brothers alleged that it was at this
juncture that accused-appellant proposed that they rob and kill his father. They
went to Bernardo's house only at 10:00 p.m., after the rain had stopped. Reynaldo
brought along a bolo. Upon reaching the house, accused-appellant knocked on the
door, asking his father to let them in. When Bernardo opened the door, Eddie
rushed in and knocked the old man down. Reynaldo then hacked Bernardo on the
nape and neck. Accused-appellant and Eddie ransacked
Bernardo's aparador looking for money but they found none; so, the three of them
left.
The body of Bernardo was discovered the next day by accused-appellant's son,
who had gone there to call his Lolo for breakfast. The cause of death, as stated in
Bernardo's death certificate was "hypovolemic shock secondary to fatal hacking
wound on the posterior neck area." 5
On September 27, 1988, Leo Quidato confronted his brother regarding the incident
and learned that Reynaldo and Eddie Malita were the ones responsible for
Bernardo's death. The two were promptly arrested by the police. Aside from
arresting the latter two, however, the police also arrested accused-appellant.
On September 29, 1988, the Malita brothers were interrogated by Patrolman
Lucrecio Mara at the Kaputian Police Station. When Mara apprised them of their
constitutional rights, including their right to counsel, they signified their intent to
confess even in the absence of counsel. Aware that the same would be useless if
given in the absence of counsel, Mara took down the testimony of the two but
refrained from requiring the latter to sign their affidavits. Instead, he escorted the
Malita brothers to Davao City and presented them, along with their unsigned
affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom. 6
Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again
advising the two of their constitutional rights. The CLAO lawyer explained the
contents of the affidavits, in Visayan, to the Malita brothers, who affirmed the
veracity and voluntary execution of the same. Only then did Reynaldo and Eddie
affix their signatures on the affidavits.7
In his defense, accused-appellant denied the allegations of the Malita brothers. He
claimed that the Malita brothers were not at his house on the evening of September
17, 1988. They, however, passed by his house at around 10:00 p.m. and asked him
to come with them to his father's house, threatening him with harm if he refused.
Out of fear, he led the way to Bernardo's house and even knocked on the latter's
door until Bernardo opened the same. In the ensuing commotion, he scampered
away, but in his confusion, reached his house only at around 11:00 p.m., although
the same was only about one hundred fifty meters away from Bernardo's house. He
did not call for help. Eddie arrived a while later. Accused-appellant claimed not to
have seen the actual killing, having run away earlier. He, however, admitted
finding a bolo, encrusted with blood, at his house. He turned the same over to his
brother, who, in turn, surrendered the same to the police. Accused-appellant did
not feel uneasy having Eddie around even if he knew of the latter's participation in
the crime.8
After due trial, the court a quo rendered the following judgment:
WHEREFORE, IN THE LIGHT OF THE FOREGOING, the
court finds the accused, Bernardo Quidato, Jr., guilty beyond
reasonable doubt as a co-principal in the offense of Parricide
which falls under Article 246 (of the Revised Penal Code), for
the death of his father, Bernardo Quidato, Sr., and accordingly,
is hereby sentenced by this court to suffer the penalty
of RECLUSION PERPETUA, with all the accessory
penalties provided by law and to indemnify the other heirs of
Bernardo Quidato, Sr., the amount of P50,000.00, in accordance
with current case doctrines of the Supreme Court, and to pay the
costs.
SO ORDERED.9
From the aforesaid judgment of conviction, appellant interposed the present
appeal, assigning the following errors:
1. THE TRIAL COURT ERRED IN GIVING
CREDENCE TO THE EXTRAJUDICIAL
CONFESSIONS OF REYNALDO MALITA
(EXH. C) AND EDDIE MALITA (EXH. D)
IN CLEAR VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE
ACCUSED-APPELLANT TO CONFRONT
WITNESSES.
2. THE TRIAL COURT ERRED IN
FINDING (THE) EXISTENCE OF
CONSPIRACY IN THE CASE AT BAR.
 3. THE TRIAL COURT ERRED IN
DISREGARDING THE DEFENSE RAISED
BY THE ACCUSED AND DISREGARDING
(ANY) ILL-MOTIVE OF REYNALDO AND
EDDIE MALITA IN KILLING THE
VICTIM.
Accused-appellant must be acquitted.
In indicting accused-appellant, the prosecution relied heavily on the affidavits
executed by Reynaldo and Eddie. The two brothers were, however, not presented
on the witness stand to testify on their extra-judicial confessions. The failure to
present the two gives these affidavits the character of hearsay. It is hornbook
doctrine that unless the affiants themselves take the witness stand to affirm the
averments in their affidavits, the affidavits must be excluded from the judicial
proceeding, being inadmissible hearsay. 10 The voluntary admissions of an accused
made extrajudicially are not admissible in evidence against his co-accused when
the latter had not been given an opportunity to hear him testify and cross-examine
him.11
The Solicitor General, in advocating the admissibility of the sworn statements of
the Malita brothers, cites Section 30, Rule 130 of the Rules of Court which
provides that "[t]he act or declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than such act or declaration." The
inapplicability of this provision is clearly apparent. The confessions were made
after the conspiracy had ended and after the consummation of the crime. Hence, it
cannot be said that the execution of the affidavits were acts or declarations made
during the conspiracy's existence.
Likewise, the manner by which the affidavits were obtained by the police render
the same inadmissible in evidence even if they were voluntarily given. The settled
rule is that an uncounseled extrajudicial confession without a valid waiver of the
right to counsel that is, in writing and in the presence of counsel is
inadmissible in evidence. 12 It is undisputed that the Malita brothers gave their
statements to Patrolman Mara in the absence of counsel, although they signed the
same in the presence of counsel the next day. As ruled in People vs. Compil: 13
[T]he belated arrival of a CLAO (now PAO) lawyer the
following day even if prior to the actual signing of the
uncounseled confession does not cure the defect (of lack of
counsel) for the investigators were already able to extract
incriminatory statements from accused-appellant . . . Thus,
in People vs. De Jesus (213 SCRA 345 [1992]) we said that
admissions obtained during custodial interrogations without the
benefit of counsel although later reduced to writing and signed
in the presence of counsel are still flawed under the Constitution.
With regard to Gina Quidato's testimony, the same must also be disregarded,
accused-appellant having timely objected thereto under the marital disqualification
rule. As correctly observed by the court a quo, the disqualification is between
husband and wife, the law not precluding the wife from testifying when it involves
other parties or accused. 14 Hence, Gina Quidato could testify in the murder case
against Reynaldo and Eddie, which was jointly tried with accused-appellant's case.
This testimony cannot, however, be used against accused-appellant directly or
through the guise of taking judicial notice of the proceedings in the murder case
without violating the marital disqualification rule. "What cannot be done directly
cannot be done indirectly" is a rule familiar even to law students.
Given the inadmissibility in evidence of Gina Quidato's testimony, as well as of
Reynaldo and Eddie's extrajudicial confessions, nothing remains on record with
which to justify a judgment unfavorable to accused-appellant. Admittedly,
accused-appellant's defense, to put it mildly, is dubious. His alleged acquiescence
to the demand of the Malita brothers to accompany them to his father's house on
the strength of the latter's verbal threats, his incredulous escape from the clutches
of the two, his inexplicable failure to return home immediately, his failure to seek
assistance from the authorities, the fact that Eddie stayed with him immediately
after the incident, and the nine-day lacuna between the killing and his pointing to
the Malita brothers as the culprits, all suggest a complicity more than that of an
unwilling participant. Yet, suspicion, no matter how strong, should not sway
judgment, it being an accepted axiom that the prosecution cannot rely on the
weakness of the defense to gain a conviction, but must establish beyond reasonable
doubt every circumstance essential to the guilt of the accused. 15 This the
prosecution has failed to demonstrate.
WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional
Trial Court of Davao City in Criminal Case No. 89-9 dated March 2, 1994, is
REVERSED and SET ASIDE. Accused-appellant Bernardo Quidato, Jr. is hereby
ACQUITTED on ground of reasonable doubt. Consequently, let the accused be
immediately released from his place of confinement unless there is reason to
detain him further for any other legal or valid cause. With costs de oficio.
SO ORDERED.
Kapunan and Purisima, JJ., concur.
Narvasa, C.J., is on leave.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 127493 December 8, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ORLANDO LABTAN y DAQUIHON (At Large), alias BEBOT, HENRY
FELICIANO y LAGURA and JONELTO LABTAN (At Large), accused,
HENRY FELICIANO y LAGURA, accused-appellant.
PUNO, J.:
Accused-appellant Henry Feliciano appeals the decision of the Regional Trial
Court of Cagayan de Oro City, Branch 25 1 convicting him of highway robbery
and robbery with homicide on the basis of a sworn statement which he repudiated
during the trial.
On April 23, 1993, an information 2 was filed against Henry Feliciano, Orlando
Labtan, and Jonelto Labtan charging them with robbery with homicide committed
as follows:
That on or about April 16, 1993, at about 2:30 in the afternoon,
more or less, at Buntong, Camaman-an, Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating together
and mutually helping one another, and with grave abuse of
confidence, did then and there wilfully, unlawfully and
feloniously and by means of violence, take, rob and carry away
P30.00/cash money to the damage and prejudice of the offended
party (Florentino Bolasito); that on the occasion of the said
robbery and for the purpose of enabling them (accused) to steal,
take and carry away the P30.00 money, the herein accused, in
pursuance of their conspiracy, did then and there wilfully,
unlawfully and feloniously, and with evident premeditation and
taking advantage of their number and strength and with intent to
kill, accused Orlando Labtan y Daquihon, alias Bebot Labtan
and Jonelto Labtan, treacherously attack, assault and use
personal violence upon Florentino Bolasito thereby inflicting
upon him the following injuries: "Shock due to multiple stab
wounds heart", with the use of a (sic) knives/bladed weapon
which accused are conveniently provided, which directly caused
the death of the said Florentino Bolasito.
Contrary to and in violation of Article 299 and 249 of the
Revised Penal Code.
Subsequently, another information 3 dated May 20, 1993 was filed against Henry
Feliciano and Orlando Labtan charging them with highway robbery committed as
follows:
That on March 28, 1993, at more or less 10:30 o'clock in the
evening while inside a motor vehicle in the national highway at
Barangay Agusan up to the road at Camaman-an, all of Cagayan
de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above- named with intent to gain and
against the will of the owners, by means of violence against and
intimidation of persons, or force upon things with the use of
knives which they were conveniently provided with, conspiring,
confederating together and mutually helping one another, did
then and there wilfully, unlawfully and feloniously and
criminally take, rob and carry away money or cash amounting to
P720.00, pioneer stereo, booster and twitters owned by and
belonging to Roman S. Mercado, and a Seiko Diver wristwatch
owned by Ismael P. Ebon, all in all amounting to P10,800,00,
against their will, to the damage and prejudice of the said
offended parties in the total sum of P10,800.00 Philippine
Currency.
Contrary to and in violation of PD 532.
Only accused Feliciano pleaded not guilty to the two charges. Orlando Labtan had
escaped the Maharlika Rehabilitation and Detention Center in Carmen, Cagayan
de Oro City where he was detained while Jonelto Labtan has eluded arrest. The
two cases were tried together.
The prosecution's case was mainly anchored on the three-page sworn statement
executed by Feliciano, originally in Visayan language, before the Cagayan de Oro
City Police station, viz: 4

Preliminary: You Henry Feliciano y Lagura, I would like to

inform you that you are here in [the] Theft and Robbery Section
of Cagayan de Oro City Police Station to be investigated
regarding an incident wherein a certain driver whose name is
Florentino Bolasito, a resident of Abellanoso St., of this City
(sic). Said driver was killed on April 13, 1993, whose body was
found at Tipolohan, Camaman-an of this City since you knew
everything about it.

I would like to inform you that according to our law you have
the following rights:

1. You have the right to remain silent, and not to answer

incriminating questions which will be used as evidence against
you.

2. You have the right to choose an attorney to defend you in this

investigation.

3. That if you can't (sic) get a lawyer, I can give you a counsel de
oficio to defend you.
Assisted by his lawyer:
Certification
Sgd. Pepito A. Chavez
This is to establish the fact that I myself voluntarily executed
this certification and hereby affix my signature hereunder on the Notary Public
_________________ day [of] April, [1993 in the] City of
Cagayan de Oro, Philippines.
Until Dec. 31, 1993
S
PTR No. 10843256 1/8/93
g
d
. Q: Before we (will) proceed [with] this
H investigation, did you understand all those
e rights I narrated to you?
n
r A: Yes, sir [,] I understand everything.
y
F
Q: Will you get a lawyer of your own to
defend you in this investigation?
A: No, sir. I can't (sic) pay the services of
lawyer.
Q: Since you will not get your own lawyer,
will you agree that I'll (sic) give you Atty.
Pepito Chavez as your counsel de oficio in this
investigation?
A: Yes, sir. I agree that Atty. Pepito Chavez
will be my lawyer for the ascertainment of the
truth.
Q: What is your highest educational
attainment?
A: Grade 4 only at Baongca, Bukidnon.
Q: In other words, you know how to read
Visaya?
A: I know[,] sir how to read Visaya including
English but I can't (sic) understand deep
English.
Q: Tell me your name, age, occupation,
residence and other personal circumstances?
A: I, Henry Feliciano, 25 years old, married
and a resident of Kolambog, Lapasan of this
city and I am [a] jeepney driver of this city.
Q: Up to this time, are you still driving?
A: No more, sir.
Q: What is then your work at this time?
A: I go [to] work [with] my friends like
Orlando Labtan alias Bebot Labtan who are
residents of Kolambog, Lapasan of this City.
Q: From what time did you go along with this
[sic] persons?
A: Since the month of February, 1993.
Q: From the time you go (sic) with them, what
have you done, if any?
A: On March 1993, I participated in a hold-up
of a certain driver Mr. Roman Mercado 5 of
Tablan who owned a jeep I use[d] to drive
(before) and we got a car stereo including the
jeep. Then, we brought the jeep to Buntong,
Camaman-an and the driver, however, we
freed the driver later.
Q: What else?
A: On March 1993 we hold-up (sic) a collector
of my brother whose name is Carmen Tan y
Feliciano 6 and we were able to get cash of
P2,080.00; [a]nd, there was also [a] certain
jeep, owned by Mr. Mangano that we
carnapped and brought (it) to Aglayan,
Malaybalay, Bukidnon.
Q: With the latest incident, what have you
done?
A: Last April 16, 1993, we held-up a certain
driver of [a] "PU Minica" whose name is
Florentino Bolasito of Abellanosa St.
Q: Will you tell us how the driver was killed
and who killed them?
A: On April 16, 1993, at 2:30 in the afternoon,
I, Bebot Labtan and Jonelto Labtan [were]
hang[ing] around outside Ororama Superstore
at J.R. Borja St., of this City, and the three of
us went to a place where most of PU Minica
cars were parked. We were able to board one
PU Minica driven by an old man.
Q: As you boarded the PU Minica where did
you go?
A: We ordered the driver to take us to
Buntong, Camaman-an of this City. When we
arrive[d] thereat, Jonelto told us that he will
visit his girlfriend while Bebot Labtan
alighted, we remained inside the vehicle. As
[the] driver demanded for the fare, however,
we have no money to pay. Suddenly, I saw
Bebot Labtan and Jonelto Labtan took a knife
and stabbed the driver.
Q: After stabbing the driver, he died, and so
Jonelto Labtan drove the PU towards
Tipolohon and we leave (sic) behind the body
of the driver, instead of me getting out from
the car (sic), Jonelto did not stop the car (sic),
so we proceeded towards Aluba Subd. and we
left the PU Minica there.
A: After you left the PU Minica at Aluba,
where did you go?
Q: I went home at Balolong of this City, and I
do not [know] where my companions
proceeded.
Q: Who then stabbed the driver?
A: The one who stabbed [the driver] [,] sir[,]
was Jonelto Labtan and Bebot Labtan.
Q: Did (sic) you able to get some money from
the driver?
This is to certify that I have read the foregoing statements
consisting of three (3) pages of which I have initiated and signed
in the presence of Atty. Pepito Chavez, Attorney de Officio, and
A: Jonelto Labtan was able to get P30.00, and
we brought (sic) a (sic) coconut wine at
Kolambog, Lapasan.
Q: With respect to this (sic) two (2) knives
which were taken from you and Bebot Labtan,
what can you say about this (sic) knives?
A: These two (2) knives, sir, the sharp knife
with a knife case is owned by Bebot Labtan,
this double blade is owned by Jonelto Labtan.
Q: Are these [the] knives which were used by
Bebot Labtan and Jonelto Labtan in stabbing
the PU Minica driver if you know?
A: Yes, sir. Bebot Labtan used this knife with
a knife case, but this knife which is double
bladed was not used, the other kitchen knife
like a fan knife which was left inside the PU
was used by Jonelto in stabbing.
Q: When (was then) were you arrested by the
police authorities of the Theft and Robbery
Section?
A: On April 20, 1993, while we, I and Bebot
Labtan were at Tambo, Macasandig of this
City waiting for the truck of Mr. Aberrastori to
ride to bring us to Valencia, Bukidnon, we
were apprehended by the policemen near the
store of Mrs. Carmen Tan. It was then that
time where Bebot Labtan was shot at his feet
and the two knives were confiscated.
Q: I have no other questions, do you have
anything to say.
A: No more. sir.
 I state that it is true and correct to the best of my knowledge and
belief.
In addition, the prosecution presented the testimony of Ismael Ebon that on March
28, 1993, at 10:30 p.m., he was driving along Bugo Highway, when two (2) men
boarded his jeepney. He identified the men as Henry Feliciano and Orlando
Labtan. Suddenly, Bebot Labtan pointed a double bladed knife on the right side of
his neck. Feliciano then took the steering wheel and proceeded to Bolonsori. When
they were near the
S house of a certain Policeman Lapis, Feliciano stopped the jeep.
The two then divested
g him of his watch, P700.00 cash, car stereo, two (2) tweeters
and one (1) booster.
d They threatened to kill him should he report to the police.
However, when.the two left, he proceeded to the Puerto Police Station and
reported the hold-up.
H He then went to the garage and told Roman Mercado, the
owner of the jeepney,
e that he was robbed. That night, the two of them reported the
robbery to the Cagayan
n de Oro City Police Station. Ebon also stated that he knew
Feliciano becauser the latter previously worked as driver of Roman Mercado. 8
y
When the defense F presented its case, only accused Henry Feliciano testified for his
behalf. His defense
e consisted of an alibi and a repudiation of his sworn statement.
He told the courtl that on March 28, 1993, when Ismael Ebon was held-up, he was
in Maasin, Baungon,
i Bukidnon, his birthplace. He did not deny Ebon's claim that
they were acquainted
c for he used to work as driver of Roman Mercado. However,
when his driver'si license expired on January 20, 1993, he went home to Bukidnon.
On April 20, 1993,
a he went back to Cagayan de Oro City and stayed at the
residence of his nsister, Carmen Tan, who lives in Macasandig, Cagayan de Oro
City. At 4:00 p.m.
o of the same day, Carmen asked him to buy snacks at a nearby
store. While buying
y the snacks, he heard a shot and when he looked around, he
saw a man lyingLon the ground. Two men in civilian clothes poked their guns at
him. One of them a asked him whether he was a companion of the man lying on the
ground. He saidgno. The two men brought him to the police station. The man lying
on the ground wasu brought to the hospital. At the police station, the two men asked
him to confess whether
r he was a companion of the person who was shot. He said
no. They asked ahim whether he was one of those who robbed Ismael Ebon. Again,
he said no. He was questioned for about an hour during which he was hit "at the
right and left breast, at the right and left ribs,
( and at the left side of [his] face."
Afterwards, he was locked up in jail. In theAmorning of the following day, he was
investigated and mauled for two hours. Again, f he was asked whether Orlando
Labtan was his companion. He insisted thatf he was not Labtan's companion for he
does not even know him. After the investigation,i a policeman approached him and
brought a piece of paper for him to sign. Hea asked whether it was possible for him
to read the contents. The policeman answered, n "No need, just sign so that we can
finish it." They then started to maul him. He t was forced to sign the paper. At
around 4:00 o'clock in the afternoon of April ) 22, 1993, he was brought to the
office of Atty. Pepito Chavez. He was told .to sit down while Atty. Chavez signed
the papers. He did not know what was happening. Atty. Chavez did not even talk
to him before signing the document. He was 7 then brought back to jail. 9
Finding the sworn statement executed by Feliciano credible, the trial court
convicted him and imposed the following penalties: 10
 WHEREFORE, premises considered, this court hereby finds III
accused Henry Feliciano guilty beyond reasonable doubt as
principal by direct participation in the crime of robbery with THE COURT A QUO ERRED IN FINDING THE ACCUSED
homicide and hereby sentences the accused to reclusion GUILTY BEYOND REASONABLE DOUBT OF THE
perpetua and to indemnify the offended party the sum of CRIMES OF ROBBERY WITH HOMICIDE AND HIGHWAY
P50,000.00 and to pay the offended party the sum of P35,000.00 ROBBERY.
representing funeral expenses and to pay the cost.
The appeal is meritorious.
This court hereby finds also the accused Henry Feliciano guilty
beyond reasonable doubt of the crime of highway robbery
Under Article III, Section 12 of the 1987 Constitution, the rights of persons under
committed on March 28, 1993 and sentences the accused to an
custodial investigation are provided as follows:
indeterminate penalty of twelve (12) years of prision mayor as
the minimum term to fourteen (14) years, eight (8) months
of reclusion temporal in its minimum period as the maximum (1) Any person under investigation for the commission of an
term and to indemnify Roman S. Mercado the sum of P8,000.00, offense shall have the right to be informed of his right to remain
representing the value of the P700.00 cash, stereo, booster, and silent and to have competent and independent counsel preferably
twitter and to indemnify Ismael Ebon the sum of P2,500.00, the of his own choice. If the person cannot afford the services of
value of the Seiko Wrist watch divested from him and to pay the counsel, he must be provided with one. These rights cannot be
cost. waived except in writing and in the presence of counsel.

SO ORDERED. 11 (2) No torture, force, violence, threat, intimidation, or any other

means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other
Hence, this appeal where accused-appellant assigns the following errors similar forms of detention are prohibited.
committed by the trial court:
(3) Any confession or admission obtained in violation of this or
I
the preceding section shall be inadmissible against him.

ON THE CHARGE OF ROBBERY WITH HOMICIDE, THE

In People v. Macam 12, the rational for the guarantee, was explained in this wise
COURT A QUO ERRED IN ADMITTING IN EVIDENCE,
THE TAINTED EXTRA-JUDICIAL CONFESSION OF THE
ACCUSED EXECUTED IN THE ABSENCE OF AN Historically, the counsel guarantee was intended to assure the
EFFECTIVE AND VIGILANT COUNSEL. assistance of counsel at the trial, inasmuch as the accused "was
confronted with both the intricacies of the law and the advocacy
of the public prosecutor." However, as the result of the changes
II
in the patterns of police investigation, today's accused confronts
both expert adversaries and the judicial system well before his
ON THE CHARGE OF HIGHWAY ROBBERY, THE trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct
COURT A QUO ERRED IN BELIEVING THE 2568 [1973]). It is therefore appropriate to extend the counsel
COMPLAINANT DRIVER WHO, IT TURNED OUT, FROM guarantee to critical stages of prosecution even before the trial.
THE POLICE BLOTTER, SAID THAT THE The law enforcement machinery at present involves critical
PERPETRATORS WERE INITIALLY UNIDENTIFIED confrontations of the accused by the prosecution at pre-trial
PERSONS THEN LATER IDENTIFIED ACCUSED proceedings "where the result might well settle the accused's fate
FELICIANO WHOM HE KNEW VERY WELL AS A and reduce the trial itself to a mere formality."
FELLOW DRIVER.
Thus, in People v. Gamboa 13, we stated that:
[T]he right to counsel attaches upon the start of an
investigation, i.e. when the investigating officer starts to ask
questions to elicit information and/or confessions or admissions
from the respondent/accused. At such point or stage, the person
being interrogated must be assisted by counsel to avoid the
pernicious practice of extorting false or coerced admissions or
confessions from the lips of the person undergoing interrogation,
for the commission of an offense. The moment there is a move
or even urge of said investigators to elicit admissions or
confessions or even plain information which may appear
innocent or inocuous at the time, from said suspect, he should
then and there be assisted by counsel, unless he waives the right,
but the waiver shall be made in writing and in the presence of
counsel.
We find that accused-appellant Feliciano had been denied of his right to have a
competent and independent counsel when he was questioned in the Cagayan de
Oro City Police Station. SPO1 Alfonso Cuarez testified that he started questioning
Feliciano at 8:00 a.m. of April 22, 1993 regarding his involvement in the killing of
jeepney driver Florentino Bolasito, notwithstanding the fact that he had not been
apprised of his right to counsel.
On cross-examination:
Atty. Carlo Mejia
Q: What [time] did you report to your office
on April 22, 1993?
SPO1 Alfonso Cuarez
A: I reported at eight o'clock in the morning.
xxx xxx xxx.
Q: What time was Henry Feliciano brought to
your office on April 22, 1993? What time did
you start to investigate Henry Feliciano on
April 22, 1993?
A: In the morning, at 8:00 o'clock, when I
reported for work.
Q: You already investigated the accused in this
case at 8:00 o'clock in the morning on April
22, 1993?
A: Yes, sir.
Q: Of course, when you investigated the
accused in the morning, he had no counsel
yet?
A: I just interviewed him.
Q: We will just use the word interview. Was
he assisted by counsel when you interviewed
him in the morning?
A: None.
Q: What was the subject matter of the
interview in the morning of April 22, 1993 to
the accused Henry Feliciano? (sic)
A: About the PU driver that was killed.
Q: Of course, he related to you everything that
transpired regarding that alleged death of a PU
driver?
A: Yes, sir.
Q: So that in the morning of April 22, 1993
you already had an idea, more or less, who
committed or who killed the PU driver by the
family name Bolasito, am I correct?
A: Yes, sir.
 Q: All that time in the morning of April 22,
1993 the accused was not assisted by a legal
counsel.
A: Not yet.
Q: What time did you decide to bring the
accused to the office of Atty. Chavez on April
22, 1993?
A: About 10:00 o'clock in the morning of
April 22, 1993.
Q: Are you trying to impress us that in the
morning of April 22, 1993 you also brought
the accused Henry Feliciano to the office of
Atty. Chavez?
A: At 8:00 in the morning, I just interviewed
him and at 10:00 o'clock in the morning I
brought him to the office of Atty. Chavez.
Q: Are you trying to impress [upon] us that
you brought accused Henry Feliciano to the
office of Atty. Chavez at 10:00 o'clock in the
morning and in the afternoon also you brought
him to the office of Atty. Chavez?
A: No more. In the afternoon Atty. Chavez
was the one who came to our office because
that was what we agreed in the morning. 14
At that point, accused-appellant had been subjected to custodial investigation
without a counsel. In Navallo v.Sandiganbayan 15, we said that a person is deemed
under custodial investigation where the police investigation is no longer a general
inquiry into an unsolved crime but has began to focus on a particular suspect who
had been taken into custody by the police who carry out a process of interrogation
that lends itself to elicit incriminating statements.
When SPO1 Cuarez investigated accused-appellant Feliciano, the latter was
already a suspect in the killing of jeepney driver Bolasito as shown by the joint
affidavit of SPO4 Johny Salcedo and SPO1 Florencio Bagaipo who were the ones
who arrested Feliciano. In their affidavit dated April 21, 1993, the two police
officers stated:
in the investigation conducted to (sic) Henry Feliciano,
he admitted and confessed to us for (sic) his
involvement of (sic) the death of the PU driver together
with his companion Bebot Labtan, and the same was
identified by many victims of robbery hold-up in this
City. And also during the investigation, Henry
Feliciano admitted to us regarding their confiscated
bladed knife as the very weapon used in the stabbing of
the PU minica driver.
The prosecution tried to establish that Atty. Pepito Chavez provided effective and
independent counselling to accused-appellant Feliciano which cured the initial lack
of counsel. However, this is belied by the very testimony of Atty. Chavez showing
he performed his duty in a lackadaisical fashion:
Assistant City Prosecutor Nicolas C. Caballero, Jr.
Q: Atty. Chavez, you stated that you are a
practicing lawyer in Cagayan de Oro City as
well as in Misamis Oriental?
Atty. Pepito Chavez
A: Yes, sir.
Q: Do you remember having assisted in the
investigation of one Henry Feliciano on April
22, 1993 at about 3:30 in the afternoon when
the said Henry Feliciano was (sic) investigated
whose written statement was taken by SPO1
Cuarez in the presence of Cabigon?
A: Yes, sir.
Q: Where was this statement taken?
A: At the office of the Theft and Robbery
Section at Operation Kahusay ug Kalinaw.
Q: How did you happen to assist Henry
Feliciano in the taking of his written
statement?
A: Because SPO3 Cuarez approached me in
my office and requested me to assist Henry
Feliciano in the taking of his testimony.
Q: What time was that when SPO1 Alfonso
Cuarez came to your office and requested you
to assist Henry Feliciano?
A: If I can remember right, Police Officer
Cuarez came to my office about three o'clock
in the afternoon.
Q: Where is your office in Cagayan de Oro
City?
A: Located at Pabayo-Gomez.
Q: What did you do after Alfonso Cuarez
came to your office and requested you to assist
in the taking of the written statement or sworn
statement of Henry Feliciano?
A: I told him I will follow later because at that
time when he came to my office I was working
on some paper works.
Q: When you said him, you were referring to
Alfonso Cuarez?
A: Yes, sir.
Q: What happened after you told him you will
follow later?
A: At about 3:25, if I remember right, I was
able to come to Operation Kahusay ug
Kalinaw particularly the office of the Theft
and Robbery Section.
Q: When you arrived at the Operation
Kahusay ug Kalinaw, who were there?
A: Police Officer Cabigon and Cuarez.
Q: Who else were there? What about Henry
Feliciano?
A: Yes, I have also seen Henry Feliciano.
Q: If you see again Henry Feliciano, will you
be able to identify him?
A: Yes, sir.
Q: Look around if he is present in the
courtroom?
A: (Witness pointing to a person with a green
t-shirt and when asked his name he answered
Henry Feliciano.)
Q: What did you do after you arrived at the
office of the Theft and Robbery Section and
saw Henry Feliciano, Cabigon and Cuarez?
A: I started my investigation or confrontation
with Henry Feliciano informing him,
appraising him of his constitutional right to
counsel, that he has a right to remain silent and
appraise him if it is his desire that I be his
lawyer because I told him if he has no desire
that I will be his lawyer, then he can look for
another.
Q: What else did you inform him or asked him
aside from what you testified already?
A: I told him did you come to confess or
testify because of fact that the police offered
you some consideration or money where you
promised of release.
Q: And what was the reaction of the said
Henry Feliciano?
A: As far as I can remember, Henry Feliciano
told me that he is forced to testify only to tell
the truth.
Q: While you were conferring with Henry
Feliciano, where was Eleuterio Cabigon and
Alfonso Cuarez?
A: Alfonso Cuarez was there listening to us.
Q: How far away from you?
A: About one armslength (sic).
Q: What about Eleuterio Cabigon?
A: About three meters near.
Q: Did Alfonso Cuarez participate in your
discussions or conference with Henry
Feliciano?
A: Yes. He sometimes clarified some answers
propounded by Henry Feliciano in the course
of the investigation.
Q: For example, what answer?
A: As far as I can remember, the question was
reduced into writing.
Q: Before that, I am referring to the point
where you had a conference with Henry
Feliciano before the start of the investigation;
where was Alfonso Cuarez?
A: He was listening to us.
Q: Was there a participation of Alfonso
Cuarez during your discussion?
A: Yes, he was the one typing the questions
asked by me and the answers propounded by
Henry Feliciano.
Q: And these questions were the ones you
testified a while ago.
A: Yes, sir.
Q: After that, what happened after you asked
these questions and you got the answer from
him? What did Alfonso Cuarez do to him?
A: Alfonso Cuarez told him that is it really his
desire . . . we are giving you Atty. Chavez as
your counsel. Are you willing? And he said
yes.
Q: What was the answer of Henry Feliciano?
A: He answered in the affirmative.
Q: Exactly, how did he answer?
A: Yes, I am very much willing.
Q: After that, when did the investigation start?
A: About 3:30 in the afternoon.
Q: After Henry Feliciano, as you said,
answered in the affirmative, what happened
then?
A: Before I started the formal investigation to
[sic] him, I reiterated that question about his
desire to take me as his counsel, and he again
answered in the affirmative.
Q: After that, for the second time, what
happened?
A: Then I started his investigation.
Q: Were you the one who investigated him?
A: At first, it was Alfonso Cuarez. Sometimes,
I interrupted in the investigation.
Q: How did Alfonso Cuarez start the
investigation?
A: In the appraisal of Henry Feliciano of his
constitutional rights.
Q: After that, what happened?
A: As far as I can remember, he proceeded
with the incident where Henry Feliciano was
involved in a series of robberies.
Q: While these questions were being asked of
Henry Feliciano, where were you?
A: I was there.
Q: How many meters away from Henry
Feliciano?
A: About one arm's length, I sat behind him.
Q: While these questions were asked of Henry
Feliciano, as you testified a series of robberies
were committed, what did you do? What was
your reaction?
A: At first, I interrupted with the answer of
Henry Feliciano thinking that it was not the
truth or it might be that the testimony will be
counted against him in the court. So, I
whispered to him if it is the truth, and he
insisted it is the truth.
Q: When you whispered to him, you are
referring to Henry Feliciano?
A: Yes, sir.
Q: Atty. Chavez, after the termination of the
investigation which was taken by SPO1
Alfonso Cuarez in your presence of SPO4
Eleuterio Cabigon on one Henry Feliciano,
what happened after that?
A: I examined the question and answer taken,
then I read it to Henry Feliciano, appraised
him, translated to him, clarified to him after he
testified.
Q: What was the reaction of Henry Feliciano?
A: He willingly listened to my explanation and
clarification about what he confessed.
Q: And after listening to your explanation,
what happened?
A: I required him to sign. Before finally
requiring to sign, if you will change your mind
about what you confessed, you still have the
right to.
Q: What did Henry Feliciano say?
A: It is the truth; and after being clarified, he
willingly signed the confession.
Q: After Henry Feliciano signed the same
written statement of (sic) him, what did you
do?
 A: After that, Alfonso Cuarez, Henry Feliciano
and me (sic) went to my office to have that
notarized, so that when I came to the
Operation Kahusay ug Kalinaw for the taking
of the confession of Henry Feliciano, I was not
bringing with me my bill and other
paraphernalias (sic).
Q: When Henry Feliciano signed the written
statement, where were you, Cabigon and
Alfonso Cuarez?
A: The same location at that time when Henry
Feliciano was taken his confession (sic). 16
The right to counsel is a fundamental right and contemplates not a mere presence
of the lawyer beside the accused. In People v. Bacamante 17, the term "effective
and vigilant counsel" was explained thus:
necessarily and logically [requires] that the lawyer be
present and able to advise and assist his client from the
time the confessant answers the first question asked by
the investigating officer until the signing of the
extrajudicial confession. Moreover, the lawyer should
ascertain that the confession is made voluntarily and
that the person under investigation fully understands the
nature and the consequence of his extrajudicial
confession in relation to his constitutional rights. A
contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to
be presumed innocent.
In People v. dela Cruz 18, an effective counsel was characterized as:
one who can be made to act in protection of his [accused's]
rights, and not by merely going through the motions of providing
him with anyone who possesses a law degree.
Again, about the only matter that bears out the presence of such
counsel at that stage of custodial interrogation are the signatures
which she affixed on the affidavit. Withal, a cursory reading of
the confession itself and SPO1 Atanacio's version of the manner
in which he conducted the interrogation yields no evidence or
indication pointing to her having explained to the appellant his
rights under the Constitution. Indeed, from our earliest
jurisprudence, the law vouchsafes to the accused the right to an
effective counsel, one who can be made to act in protection of
his rights, and not by merely going through the motions of
providing him with anyone who possesses a law degree.
Atty. Chavez did not provide the kind of counselling required by the Constitution.
He did not explain to accused-appellant the consequences of his action that the
sworn statement can be used against him and that it is possible that he could be
found guilty and sent to jail.
We also find that Atty. Chavez's independence as counsel is suspect he is
regularly engaged by the Cagayan de Oro City Police as counsel de officio for
suspects who cannot avail the services of counsel. He even received money from
the police as payment for his services:
On cross-examination:
Atty. Carlo Mejia
Q: Mr. Alfonso Cuarez, how long have you
known Atty. Chavez?
A: I know him for a long time ago (sic).
Q: How many times have you utilized Atty.
Chavez to assist prisoners under the custody of
the Cagayan de Oro Police Department?
A: As far as I can remember, three times
already.
Q: Is Atty. Chavez being paid by your office to
assist detained prisoners?
A: Sometimes we pay him P400.00 but if we
have none, he will assist for free.
Q: So Atty. Chavez is paid by the Cagayan de
Oro Police Station?
 A: It is not the Cagayan de Oro Police who
paid but it is only my initiative to give him.
Q: It is only on your own personal initiative to
pay Atty. Chavez?
A: Yes.
Q: And, of course, Atty. Chavez, if you have
the money, also accepts the money you pay to
him?
A: Yes, sir.
In People v. Deniega 19, expounding on the constitutional requirement that the
lawyer provided be "competent and independent", we stated that:
It is noteworthy that the modifiers competent and independent
were terms absent in all organic laws previous to the 1987
Constitution. Their addition in the fundamental law of 1987 was
meant to stress the primacy accorded to the voluntariness of the
choice, under the uniquely stressful conditions of a custodial
investigation, by according the accused, deprived of normal
conditions guaranteeing individual autonomy, an informed
judgment based on the choices given to him by a competent and
independent lawyer.
Thus, the lawyer called to be present during such investigation
should be as far as possible, the choice of the individual
undergoing questioning. If the lawyer were one furnished in the
accused's behalf, it is important that he should be competent and
independent, i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as distinguished from one
who would merely be giving a routine, peremptory and
meaningless recital of the individual's constitutional rights.
In People v. Basay, this Court stressed that an accused's right to
be informed of the right to remain silent and to counsel
"contemplates the transmission of meaningful information rather
than just the ceremonial and perfunctory recitation of an abstract
constitutional principle.
Ideally, therefore, a lawyer engaged for an individual facing
custodial investigation (if the latter could not afford one) "should
be engaged by the accused (himself), or by the latter's relative or
person authorized by him to engage an attorney or by the court,
upon proper petition of the accused or person authorized by the
accused to file such petition. Lawyers engaged by the police,
whatever testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in many areas,
the relationship between lawyers and law enforcement
authorities can be symbiotic."
In People v. Sahagun 20, we stated that the constitutional requirement that a lawyer
should be independent was not complied with when a lawyer who just happened to
be following-up a case at the NBI was asked to counsel the accused:
[T]he counselling given by Atty. Dizon to Villareal was not
sufficiently protective of Villareal's rights as an accused as
contemplated by the Constitution. To start with, Atty. Dizon is
not really known to Villareal. He was requested to act as counsel
because he happened to be at the NBI following-up a client's
case. Given that circumstance, it cannot be expected that Atty.
Dizon would give an advice to Villareal that would offend the
agent conducting the investigation. Thus, it appears that Atty.
Dizon did no more than recite to Villareal his constitutional
rights. He made no independent effort to determine whether
Villareal's confessions were free and voluntary. . . .. He did not
inquire from Villareal how he was treated in the last 24-hours.
He did not seek any of Villareal's relatives or friends to find out
if he has any defense which Villareal was not free to disclose
due to his confinement.
Atty. Dizon's lack of vigilance as a counsel is likewise
underscored by the fact that he himself testified that Villareal
gave his confession under the impression that he was only a
witness and not an accused in the case. This revelation should
have jolted Atty. Dizon and should have driven him to exert
extra efforts to find out whether Villareal was tricked in making
his confession. Again, he did not take an extra effort.
In People v. Januario 21, the main evidence relied upon for the conviction of
appellants was their own extrajudicial confessions which admittedly were
extracted and signed in the presence and with the assistance of a lawyer who was
applying for work in the NBI. We held that
(s)uch counsel cannot in any wise be considered "independent"
because he cannot be expected to work against the interest of a
 police agency he was hoping to join, as a few months later he in
fact was admitted into its work force. For this violation of their
constitutional right to independent counsel, appellants deserve
acquittal. After the exclusion of their tainted confessions, no
sufficient and credible evidence remains in the Court's records to
overturn another constitutional right: the right to be presumed
innocent of any crime until the contrary is proved beyond
reasonable doubt.
Perfunctorily informing a confessant of his constitutional rights,
asking him if he wants to avail of the services of counsel and
telling him that he could ask for counsel if he so desires or that
one could be provided him at his request, are simply not in
compliance with the constitutional mandate. In this case,
appellant Canape was merely told of his constitutional rights and
posthaste, asked whether he was willing to confess. His
affirmative answer may not, by any means, be interpreted as
waiver of his right to counsel of his own choice.
We also find the fact that Atty. Chavez notarized the sworn statement seriously
compromised his independence. By doing so, he vouched for the regularity of the
circumstances surrounding the taking of the sworn statement by the police. He
cannot serve as counsel of the accused and the police at the same time. There was
a serious conflict of interest on his part. 22
In People v. de Jesus 23, we stated that an independent counsel cannot be a special
counsel, public is private prosecutor, counsel of the police, or a municipal attorney
whose interest is admittedly adverse to the accused.
We have examined the three-page sworn statement allegedly executed by
Feliciano and we failed to see any badge of spontaneity and credibility to it. It
shows signs of what we call stereotype advice to which we have already called the
attention of police officers. In People v. Jarra 24, we said:
[T]he stereotyped "advice" appearing in practically all
extrajudicial confessions which are later repudiated has assumed
the nature of "legal form" or mode. Police investigators either
automatically type it together with the curt "Opo" as the answer
or ask the accused to sign it or even copy it in their handwriting.
Its tired, punctilious, fixed and artificially stately style does not
create an impression of voluntariness or even understanding on
the part of the accused. The showing of a spontaneous, free and
unconstrained giving up of a right is missing.
Since April 27, 1992 when Republic Act No. 7438 25 was enacted, the
constitutional rights of persons under custodial investigation have been further
operationalized:
Sec. 2. Rights of Persons Arrested, Detained, or Under Custodial
Investigation; Duties of Public Officers.
(a) Any person arrested, detained or under custodial
investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his
order or in his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter,
in a language known to and understood by him, of his rights to
remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under
custodial investigation. If such person cannot afford the services
of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.
(c) The custodial investigation report shall be reduced to writing
by the investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested does not know
how to read and write, it shall be read and adequately explained
to him by his counsel or by the assisting counsel provided by the
investigating officer in the language or dialect known to such
arrested or detained person, otherwise, such investigation report
shall be null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any
of the parents, older brothers and sisters, his spouses, the
municipal mayor, the municipal judge, district school supervisor,
or priest or minister of the gospel as chosen by him; otherwise,
such extrajudicial confession shall be inadmissible as evidence
in any proceeding.
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or under
custodial investigation, shall be in writing and signed by the
 person in the presence of his counsel; otherwise such waiver
shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with any
member of his immediate family, or any medical doctor or priest
or religious minister chosen by him or by any member of his
immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission
on Human Rights or by any international non-governmental
organization duly accredited by the Office of the President. The
person's immediate family shall include his or her spouse, fiance
or fiancee, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or
ward.
Consequently, it is disappointing to see how up to now some police officers still
sidestep the constitutional mandate, the consequence of which is all too familiar
the inadmissibility of the statement, confession, or admission taken. 26
In People v. dela Cruz 27, we stated that "a confession made in an atmosphere
characterized by deficiencies in informing the accused of all rights to which he is
entitled would be rendered valueless and inadmissible, perforated, as it is, by non-
compliance with the procedural and substantive safeguards to which an accused is
entitled under the Bill of Rights and as now further implemented and ramified by
statutory law."
On the charge of robbery with homicide, the only evidence presented by the
prosecution was the sworn statement which we have found inadmissible. Thus, we
are forced to absolve accused-appellant of this charge. With respect to the charge
of highway robbery, the prosecution presented the testimony of Ismael Ebon.
However, Ebon failed to identify Feliciano as the perpetrator when he reported to
the police immediately after the incident:
CASE NO. 2143 dated 0030 H 29 March 93. Ismael Ibon y
Petalcorin, 27 m (sic), of Reyes Bugo, CDO, driver of PUJ Bugo
Liner bearing Plate No. KBJ-748, and Christopher Impoc y
Amba, 16, s (sic), of Zone 4, Tablon, this City, jointly came to
this OKK-CIS and reported that they were allegedly victimized
by two unidentified robbers who was (sic) armed with a (sic)
knives and taken from the possession of the above driver his
cash money P700.00 and took our stereo Pioneer Brand with
Booster and twitter. The incident was (sic) occurred at Agusan,
this City, and the suspect was desembarked (sic) at Camaman-
an, this City at 10:30 p.m., this date. 28
Ismael Ebon and accused-appellant Feliciano are acquainted. There is no reason
for Ebon to withhold the identity of the perpetrator except for the fact that he was
not certain of it. 29 Consequently, there is no evidence pointing to Feliciano as one
of those who held-up Ebon.
IN VIEW WHEREOF, the decision of the trial court is SET ASIDE. Accused-
appellant Henry Feliciano is ACQUITTED on both charges of robbery with
homicide and highway robbery due to lack of evidence to sustain a conviction. The
Director of the New Bilibid Prisons (NBP) is directed to inform this Court
compliance with the Decision within ten (10) days from its receipt. No costs.
SO ORDERED.
Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.
SECOND DIVISION
G.R. No. 128551 July 31, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAMIL SAMOLDE Y TAMBUNTING and ARMANDO ANDRES, accused.
RAMIL SAMOLDE Y TAMBUNTING, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision,1 dated February 26, 1992, of the Regional
Trial Court, Branch 74, Antipolo, Rizal, insofar as it finds accused-appellant Ramil
Samolde guilty of the crime of murder and sentences him to suffer the penalty
of reclusion perpetua and to pay the amount of 50,000.00 as civil indemnity for
the death of Feliciano Nepomuceno.
The facts are as follows:
On August 10, 1989, accused-appellant Ramil Samolde was charged, together with
Armando Andres, with the crime of murder, the information against them alleging
That, on or about the 13th day of May 1989, in the municipality of Taytay,
province of Rizal, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping and aiding one another, with intent to kill, treachery and evident
premeditation, taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault and grab the service firearm a caliber .38
revolver with SN-982794 Smith & Wesson of one P/Cpl. Feliciano Nepomuceno y
Cruz and shot the herein victim on the body, as a result of which the said P/Cpl.
Feliciano Nepomuceno y Cruz sustained gunshot wounds which caused his death.2
When arraigned on November 29, 1989, both accused pleaded not guilty,
whereupon, trial was held. 3
The prosecution presented six witnesses, namely, Edgardo Cabalin, 4 Ricardo
Nepomuceno, Dr. Dario L. Gajardo, P/Sgt. Benjamin Calderon, P/Sgt. Romeo De
Leon, and Arsenia Nepomuceno.
Edgardo Cabalin, a neighbor of the victim and accused-appellant, testified that at
around 5 oclock in the afternoon of May 13, 1989, accused-appellant and
Armando Reyes asked him to lend them a tear gas gun which they would use to
get someones firearm. However, Cabalin said, he did not lend his tear gas gun to
them. He claimed that while he was having drinks with a friend at a store, he later
learned that Nepomuceno had been shot. At that point, he and his friend knew who
the assailants were. He explained that accused-appellant had a grudge against
Nepomuceno because when the former was in jail for stealing a chicken, the latter
beat him up.5
On cross-examination, Cabalin admitted that he did not really witness the killing
of Nepomuceno. He only learned of this fact when he and his friend were drinking
beer at the store of a certain Turong Duleng and the other people there were
talking about the incident.6
Ricardo Nepomuceno, a nephew of the victim, testified that he knew the accused-
appellant and Armando Andres because they grew up together in Taytay, Rizal
until he moved to Morong, Rizal. He said that on May 13, 1989, between 7:30 and
8 oclock in the evening, he saw Ricardo Nepomuceno on Naval Street being
followed by Armando Andres and accused-appellant. Ricardo said he was 15 to 20
meters away from the two. He recognized them because he had known them for a
long time, and there was light coming from the electric post and from the houses
along the street. According to this witness, when Feliciano Nepomuceno turned to
Mahinhin Street, accused-appellant grabbed him from behind while Andres, who
was in front, stabbed the victim on the side with a knife. As Feliciano
Nepomucenos gun fell, Andres picked it up and shot the victim three times.
Afterwards, he ran towards the direction of Sky Theater. On the other hand,
accused-appellant Samolde ran towards Salazar Street.
As soon as the assailants had fled, Ricardo Nepomuceno claimed he went to the
aid of his uncle and put him on a tricycle to take him to the hospital. On the way,
they were met by an ambulance and Feliciano Nepomuceno was transferred to it.
However, he died before reaching the hospital. His body was later taken to Camp
Crame for autopsy. Ricardo Nepomuceno said he did not know of any bad blood
between his uncle and the accused.7
On cross-examination, Ricardo Nepomuceno reiterated that he saw Armando
Andres stab the victim at the side as accused-appellant Samolde held the victim.
He admitted, however, that he did not volunteer information to the police. 8
Dr. Dario L. Gajardo examined the body of Feliciano Nepomuceno. His findings
are as follows:
SPECIMEN SUBMITTED:
Cadaver of Feliciano Nepomuceno, about 52 years old, policeman, 171 cm. in
height and a resident of #92 Int. Naval St., Taytay, Rizal.
PURPOSE OF LABORATORY EXAMINATION:
To determine the cause of death.
FINDINGS:
Fairly developed, fairly nourished male cadaver in primary flacidity with
postmortem lividity over the dependent portions of the body. Conjunctivae are
pale. Lips and nailbeds are cyanotic.
TRUNK AND UPPER EXTREMITY:
(1) Gunshot wound, point of entry, left infraclavicular region, measuring
0.8 by 0.7 cm., 13.5 cm. from the anterior midline, with an abraided
collar, measuring 0.2 cm. laterally and superiorly, 0.1 cm. medially and
inferiorly, directed posteriorwards, downwards and to the right, fracturing
the 3rd left thoracic rib along the midclavicular line and 5th left thoracic
rib along the midaxillary line, lacerating the upper lobe of both lungs and
arch of the aorta, with a deformed .38 caliber slug recovered at the right
axillary region, just beneath the skin.
 (2) Gunshot wound, point of entry, right infrascapular region, measuring
0.8 by 0.7 cm., 5 cm. from the posterior midline, with an abraided collar,
measuring 0.2 cm. laterally, 0.1 cm. medially, superiorly and inferiorly,
directed anteriorwards, downwards and to the left, fracturing the 10th
right thoracic rib along the paravertebral line and 9th thoracic vertebra,
lacerating the lower lobe of the right lung with a deformed .38 caliber
slug recovered at the left thoracic cavity.
(3) Gunshot wound, thru and thru, point of entry, left mammary region,
measuring 1.8 by 0.8 cm., 10 cm. from the anterior midline, with an
abraided collar, measuring 0.2 cm. superiorly, 1 cm. laterally, 0.1 cm.
medially and inferiorly, directed downwards and medialwards, making a
point of exit at the epigastric region, measuring 3 by 6.2 cm., 5.5 cm. left
of the anterior midline.
(4) Gunshot wound, thru and thru, point of entry, distal 3rd of the left
arm, measuring 0.8 by 0.7 cm., 8 cm. lateral to its anterior midline, with
an abraided collar, measuring 0.2 cm. laterally, 0.1 cm. medially,
superiorly and inferiorly, directed horizonwards and medialwards,
making a point of exit at the middle 3rd of the left arm, measuring 2 by
1.5 cm., 2 cm. medial to its anterior midline.
One thousand eight hundred (1,800) cc of blood and blood clots accumulated at
the thoracic cavity.
Stomach is full of partially digested food particles consisting mostly of rice and the
rest of the visceral organs are grossly unremarkable.
CONCLUSION
Cause of death is cardio-respiratory arrest due to shock and hemorrhage secondary
to multiple gunshot wounds in the trunk and upper extremity. 9
Dr. Gajardo testified that judging from the point of entry of the bullets in wound
nos. 1 and 3, he concluded that the assailant was in front of the victim, while in
wound no. 2, the assailant was at the back of the victim. He said that from the
location of wound no. 2, it was possible that the victim was lying on his stomach
when he was shot. Wound no. 4 was found on the left arm of the victim. Wound
nos. 1, 2, and 3 were the fatal wounds which caused the victims instantaneous
death. Dr. Gajardo opined that these wounds were caused by a .38 caliber gun.10
On cross-examination, Dr. Gajardo said that although there were other injuries
found in the body of the victim, these injuries were part of the gunshot wounds
sustained by him, indicating that the victim fought off his assailants. No stab
wound, however, was found on the body of the deceased. Dr. Gajardo conceded
that it was possible that wound nos. 3 and 4 were caused by a different firearm
because he was unable to recover the slugs from these wounds. 11 Dr. Gajardo
explained that he placed the slugs which he recovered from the body of the victim
inside an envelope attached to the medical report.12 He said he did not place any
markings on the slugs because this might destroy the evidence. He simply wrapped
the slugs with pink paper with tag number M-079-89 corresponding to the number
of the medical report.13
P/Sgt. Benjamin Calderon, chief investigator of the Taytay police, testified that, at
about 8 oclock in the evening of May 13, 1989, he went to the scene of the crime
on Salazar Street near the corner of Mahinhin Street. He interviewed several
people, including Edgardo Cabalin. Moreover, he was the one to whom accused-
appellant and Armando Andres gave their statements in which they admitted that
they killed Feliciano Nepomuceno. Sgt. Calderon said that the statements were
given with the assistance of Atty. Emiliano Benito. He further said that the firearm
taken from Feliciano Nepomuceno was recovered from the house of Armando
Andres relatives in Antipolo by police operatives led by Station Commander
Daniel Hernandez.14
On cross-examination, Sgt. Calderon clarified that he was not one of those who
arrested accused-appellant and Andres. According to Sgt. Calderon, Andres was
arrested on June 19, 1989, but he executed his statement only on June 22, 1989,
after he was provided with a lawyer. Sgt. Calderon said he advised accused Andres
to get his own lawyer and when the latter failed to do so, he recommended Atty.
Benito to Andres. Atty. Benito stayed with Andres from the start of the
investigation until the execution of the latters statement. Sgt. Calderon said that
Andres was not given a physical examination prior to the investigation. On the
other hand, accused-appellant, according to Sgt. Calderon, was arrested on June 6,
1989 in Bustos, Bulacan by P/Sgt. Rogelio De Leon. That same afternoon, Sgt.
Calderon took Samoldes statement. Accused-appellant was assisted by Atty.
Emiliano Benito who stayed with accused-appellant until the end of the
investigation. Sgt. Calderon could not remember whether Samolde was physically
examined.15
P/Sgt. Romeo De Leon also testified. He said that on June 6, 1989, he went to
Bustos to arrest accused Ramil Samolde. Upon arriving in the town, he and his
companions found that accused-appellant Samolde was in jail for stealing a
television set. Sgt. De Leon talked to the complainant in the theft case and
convinced him to withdraw his complaint so that they could take accused-appellant
with them to Taytay for proper investigation. As to Andres, Sgt. De Leon testified
that he learned from Samolde that Andres had gone to Ilocos Sur. Accordingly, on
June 19, 1989, Sgt. De Leon and his team went to Barrio Surbic, Narvacan, Ilocos
Sur, and found Andres. Andres expressed regret for killing Nepomuceno. 16
Sgt. De Leon stated on cross-examination that he was chief of the intelligence
operation of the Taytay Police Station and that he was authorized to serve warrants
of arrest. They arrested Samolde in Taytay on June 6, 1989. He said that during the
six-hour trip to Taytay, they questioned accused-appellant regarding the
whereabouts of Andres and the gun taken from Nepomuceno. Sgt. De Leon denied
having used violence against Samolde. He said he asked Andres for the gun used
in killing Feliciano Nepomuceno, and Andres said it was in Antipolo.
It was admitted that no counsel assisted Andres when he was interrogated. Sgt. De
Leon denied using force against Andres during the twelve-hour trip from Narvacan
to Taytay.17
Arsenia Nepomuceno, wife of the deceased Feliciano Nepomuceno, testified that
on May 13, 1989, Perry Nepomuceno, a nephew, told her that her husband had
been shot while on his way home. She went to the place where her husband was
shot but he was no longer there, having been taken to the Angono Memorial
Hospital. Accordingly, she and her nephew went to the hospital but they found that
he had died. She testified that she spent 7,500.00 for food and beverages served
during her husbands five-day wake and paid 475.00 for the electricity. She also
paid 14,500.00 for the funeral services, 7,500.00 for the tomb, and 6,500.00
for the family lot. She said that her husband earned 1,800.00 a month as a
policeman. She related how she spent sleepless nights after the death of her
husband and how she was forced to accept sewing jobs to care for their four
children.18 The expenses for the funeral services were supported by a receipt for
14,500.00 issued by La Funeraria Oro.19 She also presented receipts for
1,800.00 for the construction of Feliciano Nepomucenos tomb 20 and 7,500.00 accused-appellant Ramil Samolde, they were not friends. Andres said he likewise
for the family plot in the Taytay Municipal Cemetery.21
Arsenia Nepomuceno admitted on cross-examination that she was not present
when the receipt for 14,500.00 was issued by La Funeraria Oro, but she was
present when the receipts for 1,800.00 and 7,500.00 for the tomb and cemetery
plot were issued.22
Accused-appellant Ramil Samolde and Armando Andres testified in their behalf.
Samolde testified that the victim, Feliciano Nepomuceno, was his neighbor in
Taytay. He admitted harboring ill will and much bitterness towards the latter
because he was an abusive policeman.23 According to Samolde, at around 7:30 in
the evening of May 13, 1989,24 he was walking towards the market when he met
Feliciano Nepomuceno. Nepomuceno pointed a gun at him and called him a thief.
Samolde said he parried the gun and stabbed Nepomuceno with a carver, hitting
the latter on the left side. When the gun fell to the ground, Samolde picked it up
and shot Nepomuceno. He then went to his brothers house to ask for money so
that he could go to Plaridel, Bulacan, where he stayed until he was arrested. He
was detained in Bustos for two weeks, then transferred to the Taytay jail where he
claimed he was beaten up by the police. Samolde testified that the police wanted to
know who helped him kill Nepomuceno. He gave a statement implicating Andres
because of a grudge which he bore against the latter. Accused-appellant claimed
that although he was provided a lawyer, the latter was not really present during his
investigation.
On cross-examination, accused-appellant testified that he was on his way to the
Taytay market when he met Nepomuceno who, as he often used to, called him a
thief. He reiterated that he stabbed Nepomuceno before shooting him with a
service revolver. Accused-appellant said that as Nepomuceno held a gun to his
face, he parried it and stabbed Nepomuceno, causing the latter to drop his gun.
Accused-appellant said he then picked up the gun and shot Nepomuceno twice.
Accused-appellant denied he had a companion. He testified that during his
detention, he was not allowed to be seen, lest visitors notice his swollen face. He
later told his parents that he had been manhandled in jail, but the latter did not file
a case against the policemen. As regards his counsel, accused-appellant stated that,
contrary to what was stated in his extrajudicial confession, his lawyer did not
really assist him. He was not informed of his constitutional rights when he
executed his extrajudicial confession, and he did so only after he had been
subjected to some brutality by the police. Upon inquiry by the trial court, accused-
appellant stated that although he made two thrusts with his carver at Nepomuceno,
he failed to hit the latter. He admitted that he is left-handed.25
On the other hand, Armando Andres told the court that he was born in Taytay and
that he earned his living by driving a tricycle. He said that although he knew
knew the victim, Feliciano Nepomuceno, but did not know where he lived. Andres
claimed that on May 13, 1989, he was in Surbic, Ilocos Sur, where he had been
living with his sister. He learned that he was implicated in the killing of
Nepomuceno only when the police came to arrest him in Ilocos Sur on June 19,
1989. Like accused-appellant, Andres also claimed he was beaten up by a
policeman at the Taytay jail; that the sworn statement he gave had been prepared
by the police; that he was not given any opportunity to read it before he signed it;
and that he did so because he was subjected to torture and intimidation by the
police. He said he could not remember whether he had a lawyer when he gave his
sworn statement.
On cross-examination, Andres explained that he knew accused-appellant because
the latter used to ride on his tricycle, but he denied that he and accused-appellant
were close friends. He likewise denied being acquainted with the victim
Nepomuceno, reiterating that he only knew the latter by face. He denied shooting
Nepomuceno. He also disclaimed going to the house of a certain Leandro Nalo in
Antipolo, Rizal. He further denied burying in Antipolo Nepomucenos .38 caliber
revolver. He admitted having gone to Ilocos Sur only on May 15, 1989, and not on
May 13, 1989, but denied that he was hiding.26
On February 26, 1992, the trial court rendered judgment as follows:
In view of all the foregoing, the Court finds Ramil Samolde y Tambunting and
Armando Andres y Mendoza GUILTY beyond reasonable doubt of the crime of
Murder, and they are hereby sentenced to suffer the indeterminate penalty of
Reclusion Perpetua, and to pay jointly and severally the heirs of deceased
Feliciano Nepomuceno, by way of indemnity, the sum of Fifty Thousand
(50,000.00) Pesos, without subsidiary imprisonment in case of insolvency.
For failure of accused Ramil Samolde and Armando Andres to agree voluntarily in
writing before or during their temporary imprisonment to abide by the same
disciplinary rules imposed upon convicted prisoner, they shall be credited in the
service of their sentence each with 4/5 of the time during which they have
undergone preventive imprisonment.
SO ORDERED.27
Only Ramil Samolde has appealed. He contends that:
1. The Court erred in finding there is complicity by circumstantial
evidence; and
2. Accused-Appellant was given 10,000.00 by Armando Andres to
confess to the murder.28
Armando Andres did not appeal.
We find accused-appellants contentions to be without merit.
First. To be sure, the testimony of Ricardo Nepomuceno cannot be relied upon to
sustain the conviction of accused-appellant. Nepomuceno claimed that he saw the
incident happen because he was at the scene of the crime. He claimed he had come
from his parents house, and he saw the deceased being followed at Naval Street
by accused-appellant and Armando Andres. Yet he never volunteered information
to the police.29 We can understand the reluctance of a witness to testify in a case
that does not concern him personally. But the victim in this case was the witness
own uncle. Until he testified at the trial of the case on June 20, 1990, more than
one year after allegedly witnessing the killing of his uncle on May 13, 1989,
Ricardo Nepomuceno never told anyone about what he allegedly knew about the
killing. Such unexplained delay of an alleged eyewitness to the murder of a kin in
reporting the matter to the authorities casts grave doubts on the credibility of his
testimony. As we held in a similar case:30
The rule is ordinarily to the effect that delay by a witness in divulging what he or
she knows about the commission of a crime, such as the identity of the offender, is
not by itself a setback to the evidentiary value of such a witness testimony. The
courts, however, have been quick to deny evidentiary weight where such delay is
not sufficiently justified by any acceptable explanation.
For instance, well-founded fear of reprisal, or the unpredictable manner by which
individuals react when confronted by a gruesome event as to place the viewer in a
state of shock for sometime, have been considered as permissible situations
resulting in delay. Invariably, however, even under the foregoing circumstances
the delay must not be undue in point of time. Thus, failure to reveal what one had
witnessed about a crime for a number of days, or weeks, or even a number of
months, is allowable. But, that will not hold true where, as in the case now being
reviewed, the delay had unreasonably stretched all too far out into a year and four
months, especially in the absence of any compelling or rational basis for such self-
imposed and lengthy silence.
His belated disclosure raises the suspicion that his testimony was fabricated in
order to provide evidence to the prosecution. 31
Moreover, Ricardo Nepomucenos narration of the events is incredible. He
testified:
Q: Now, on May 13, 1989 . . . between the hours of 7:30 to 8:00 in the evening, do
you still recall where were you?
A: I came from the house of my parents and I was about to go home to Morong.
Q: And while walking at Naval St. as you said at about that time between the hours
of 7:30 and 8:00 oclock in the evening, do you recall of any unusual incident that
took place within the vicinity?
....
A: I saw Armando Andres and Ramil Samolde they were also walking along and
following Cpl. Nepomuceno.
Q: Now, on what street did you see both accused Ramil Samolde and Armando A: It is lighted and it is bright.
Andres following Feliciano Nepomuceno?
Q: Now, what is the source of this light which you said illumin[ed] the street?
A: Also in Naval St.
A: From the post of the Meralco.
Q: And will you tell us at about what distance were you from the 3?
Q: Now, is that street thickly populated?
A: About 15 meters.
A: Yes, sir.
Q: Now, while walking and following the 3 what happened, if any?
Q: And the houses along these streets were lighted at that time?
A: Upon reaching the corner of Naval and Mahinhin they turn towards Mahinhin
St. so they were blocked to my view. A: Yes, sir.

Q: Now, you said that you saw the two accused following Cpl. Feliciano Q: Now, you made mention a while ago that the three referring to both accused
Nepomuceno. Now, you were in there back, is it not? and Feliciano Nepomuceno executed a turn, to what street did the three proceed?

A: Yes, sir. A: To Mahinhin St.

Q: Now, will you tell us why you were able to recognize the two accused when as
you said you were at their back?
A: I have known them for a long time that is why even if their back[s are] against
me I can still recognize them.
Q: And what did you do after that?
A: Upon reaching the street corner I also turn towards them.
Q: You mean to say you likewise turn to Mahinhin St.?

Q: Now, considering the length of time that you have known both accused were
A: Yes, sir.
you their playmates?
Q: What happened next, if any?
A: We used to meet at the place of Ramil because we used to play with the
gamecock.
A: Upon turning on the street I already saw that Ramil Samolde was embracing
Cpl. Nepomuceno on the back.
....
Q: And what about Armando Andres what was he doing then?
Q: Now, considering the three of you grew up together in the same place at Naval
St., Taytay, Rizal, you can recognize anyone of them at the distance of about 15
meters, do I get you right? A: He was in front and holding a knife as he just stabbed Nepomuceno.

A: Yes, sir. Q: Now, did you see what portion of the body of Cpl. Nepomuceno was stabbed
by Armando Andres?
Q: Now, will you describe that place Naval St. during nighttime at around 7:30 to
8:00 in the evening with regards to the lighting, it is dark or it is lighted? A: As far as I know it was on the side.
Q: Left side or right side? Q: Are you sure of that?

A: I cannot recall, sir. A: Yes, sir.

Q: Now, what happened next, if any? Q: And are you sure what portion of the body does Cpl. Nepomuceno was hit?

A: After Armando stabbed Cpl. Nepomuceno his gun fell. A: I saw that he was hit on his side of the body.33

Q: And as the gun of Cpl. Nepomuceno fell on the ground what happened next? The above testimony is, however, belied by the results of the physical examination
of the victim as well as by the testimony of Dr. Dario L. Gajardo. The medico-
A: It was picked up by Armando. legal report states that Feliciano Nepomuceno sustained four gunshot wounds,
three of which were fatal, but there was no stab wound. Dr. Gajardo testified:
Q: And what did Armando do with that gun?
Q: In your findings, it appears that there are four (4) gunshot wound[s], is that
A: He fired it to Cpl. Nepomuceno. correct?

A: Yes, Sir.
Q: Now, how many gunshots did you hear?

A: Three (3) times, sir. Q: No other injuries at the body of the victim that you have found?

A: Well, there were other injuries which is part.

Q: After that what happened next, if any?

A: They run away in different direction.32 Q: Did you find any stab wound on the body of the victim?

Answering questions on cross-examination, Ricardo Nepomuceno reiterated that
he saw Andres holding a pointed instrument which the latter used to stab the
victim. As he testified:
Q: Mr. Witness, you are under oath in testifying in connection with this case, are
you sure you saw Armando holding a knife, is that correct?
A: I know that he was holding an instrument.
Q: Will you describe what he is holding?
A: A pointed instrument.
Q: And according to you while Andres is holding that knife, did you see Armando
stabbed the victim Cpl. Nepomuceno, is that correct?
A: None, Sir.34
In People v. Padica,35 it was held that the absence of stab wounds does not negate
a witness testimony that the victim was stabbed by his assailants. In that case,
however, the apparent inconsistency between the witness testimony and the
evidence is explained by the fact that, although the accused tried to stab the victim,
the weapon failed to penetrate and hit the body. In the present case, however, Dr.
Gajardo categorically stated not only that there was no stab wound found on the
body of the victim but also that the other injuries sustained by him were part of the
gunshot wounds inflicted on him.36 These other wounds, such as the abrasions,
were caused by the struggle between the victim and his assailants. 37 No lacerations
were reported to have been sustained by the victim.
Nor is the extrajudicial confession of accused-appellant admissible in evidence.
Accused-appellant was not informed of his constitutional rights before his
statement was taken.

A: Yes, sir. The pertinent portions of his extrajudicial confession read:

PALIWANAG: Ikaw ngayon ay nasa ilalim ng isang pagsisiyasat. Bago kita
tanungin ng mga bagay-bagay na may kinalaman sa kasong ito ay nais kong
ipabatid ko sa iyo ang iyong mga karapatan na gaya ng mga sumusunod:
Na: Ikaw ay may karapatan manatiling tahimik, at may karapatan magbigay o
huwag ng salaysay kung gusto mo.
Na: Ano mang salaysay kung magbibigay ka ito ay maaaring gamitin katibayan
laban o pabor sa iyo sa alin mang hukuman dito sa kapuluan Pilipinas.
Na: Ikaw ay may karapatan din sa tulong at pagharap ng sino mang manananggol
na iyong nais.
1. TANONG: Matapos mong mabatid ang iyong mga karapatan alinsunod
sa ating bagong saligang batas, ikaw ba ay nahahandang magbigay ng
isang malaya at kusang loob na salaysay na ang iyong sasabihin ay
pawang katotohanan lamang?
SAGOT: Opo.
2. T: Ikaw ba ay mayroon abogado sa oras na ito, upang makatulong mo
sa imbestigasyon na ito?
S: Mayroon po, si Atty. Emiliano Benito, na siyang aking nagustuhan
abogado, upang makatulong ko sa pagsisiyasat sa akin.
3. T: Sa harap ng iyong abogado, nauunawaan mo bang lahat ang iyong
mga karapatan na aking ipinaliwanag sa iyo?
S: Opo, kaya po ako kumuha o pumili ng aking abogado.
4. T: Mailalagda mo ba ang iyong pangalan, bilang patunay na
nauunawaan mo ang mga karapatan mo at bilang patotoo na ikaw ay may
katulong na abogado sa oras ng pagsisiyasat sa iyo?
S: Opo.
Assisted by: (SGD.)RAMIL SAMOLDE
(Sgd.)
Atty. Emiliano Benito
Nagsasalaysay38
Clearly, accused-appellant was not properly apprised of his constitutional rights.
Under Art. III, 12(1) of the Constitution, a suspect in custodial investigation must
be given the following warnings: "(1) He must be informed of his right to remain
silent; (2) he must be warned that anything he says can and will be used against
him; and (3) he must be told that he has a right to counsel, and that if he is
indigent, a lawyer will be appointed to represent him." 39As the abovequoted
portion of the extrajudicial confession shows, accused-appellant was given no
more than a perfunctory recitation of his rights, signifying nothing more than a
feigned compliance with the constitutional requirements. This manner of giving
warnings has been held to be "merely ceremonial and inadequate to transmit
meaningful information to the suspect." 40 For this reason, we hold accused-
appellants extrajudicial confession is invalid.
However, apart from the testimony of Ricardo Nepomuceno and the extrajudicial
confession of accused-appellant, there is sufficient evidence in the records
showing accused-appellants guilt. Accused-appellant confessed in open court that
he had killed Feliciano Nepomuceno. It is this admission of accused-appellant
which should be considered.41
Now accused-appellant testified that on the day in question, he met the deceased
and, as he had done in the past, the latter poked a gun at him at the same time
called him a thief. Angered by what had been done to him, accused-appellant said
he pushed Nepomucenos hand away and stabbed him with a carver. Then, when
Nepomuceno dropped his gun to the ground, accused-appellant picked it up and
shot Nepomuceno. Accused-appellant claimed that he merely implicated Armando
Andres because he had a grudge against Andres.42
The trial court dismissed this attempt to exculpate Andres and convicted the latter.
We think the trial court correctly did so. Indeed, accused-appellant now claims that
he was given 10,000.00 by Andres to make the admission in court in order to
exonerate the latter.43 But the fact that Armando Andres chose not to appeal is
proof of the falsity of this claim. This flipflop makes accused-appellants
explanation as to why he admitted slaying Feliciano Nepomuceno very doubtful.
We have held that a judicial confession constitutes evidence of a high order. The
presumption is that no sane person would deliberately confess to the commission
of a crime unless prompted to do so by truth and conscience. 44Indeed, it is hard to
believe that a person, of whatever economic status, would confess to a crime that
he did not commit for monetary considerations and thus barter away his liberty,
and for that matter, even his life, for a mess of potage, for that is what the mere
sum of 10,000.00 allegedly paid to him to make the confession means.
On the other hand, the fact that accused-appellant felt bitter towards the victim for
having tortured him in jail was the motivating factor which made him kill the
latter. The attempt of accused-appellant and Andres to borrow a tear gas gun from
a neighbor so that they could take the victims gun and their flight after getting
their quarry, when taken together with accused-appellants judicial confession,
place beyond the shadow of doubt the guilt of accused-appellant.
"Generally, motive is proved by the acts or statements of the accused before or
immediately after the commission of the offense - deeds or words that may express
the motive or from which his reason for committing the offense may be
inferred."45 In this case, Edgardo Cabalin, a neighbor, testified that accused-
appellant harbored ill feelings towards the victim. Cabalin related that, at one time,
accused-appellant, who had been jailed for stealing, was beaten up in jail by
Feliciano Nepomuceno, a member of the police.46 (Accused-appellant himself said
the victim was an abusive policeman and admitted that he felt much bitterness
towards him.47 ) Cabalin testified that at around 5 oclock in the afternoon of May
13, 1989, the same day the victim was killed, accused-appellant and Armando
Andres tried to borrow a tear gas gun from him because they were planning to take
someones gun, but, Cabalin said, he did not lend them his tear gas
gun.48 Accused-appellant thus had a motive to kill Nepomuceno.
Another circumstance to be taken against accused-appellant was his flight after the
commission of the crime. Accused-appellant was arrested in Bulacan. Apparently,
he went into hiding in Bulacan to avoid arrest. In a similar case, it was held that
the fact that the accused disappeared shortly after the commission of the crime and
could not be found in their respective residences such that an alias warrant had to
be issued for their arrest were strong indications that they committed the crime.
Flight has been held to be an indication of guilt.49
Second. The question of whether the killing of Feliciano Nepomuceno was
committed with treachery and with evident premeditation remains to be resolved.
In this case, the trial court found the killing to be attended by the qualifying
circumstance of treachery.
We do not agree. For treachery to be appreciated as a qualifying circumstance, the
following elements must concur: "(1) the employment of means of execution
which gives the person assaulted no opportunity to defend himself or retaliate; and
(b) that said means of execution were deliberately or consciously adopted by the
assailant."50 As already stated, Ricardo Nepomucenos testimony cannot be given
credence. No other evidence was presented by the prosecution to prove the mode
and manner in which accused-appellant and Armando Andres executed the crime.
For this reason, there is no basis for appreciating treachery in this case.
We hold, however, that there was evident premeditation so as to make the killing
murder. The elements of evident premeditation are: (1) the time when the accused
determined to commit the crime; (2) an act manifestly indicating that the accused
has clung to his determination; and (3) a sufficient lapse of time between such
determination and execution to allow him to reflect upon the circumstances of his
act.51
As stated earlier, accused-appellant and Armando Andres tried to borrow
Cabalins tear gas gun. This attempt by accused-appellant and his co-accused to
arm themselves prior to the commission of the crime constitutes direct evidence
that the killing of Feliciano Nepomuceno had been planned with care and executed
with utmost deliberation. Such act also shows that the accused-appellant and his
co-accused had a previous agreement to kill Feliciano Nepomuceno. From the time
the two agreed to commit the crime to the time of the killing itself, sufficient time
had lapsed for them to desist from their criminal plan had they wanted to. Instead,
they clung to their determination and went ahead with their nefarious plan. That
nobody saw the killing of Nepomuceno even indicates that the two planned to
commit the crime at such time and place where the victim was alone and help
would be difficult to obtain. The killing of Nepomuceno was done under such
circumstances that the assailants foresaw the problems they might encounter, i.e.,
the victim was armed and thus knew how to defend himself, and figured out the
means to deal with them. "The essence of premeditation is that the execution of the
criminal act was preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during a space of time sufficient to arrive at a calm
judgment."52 Clearly, the elements of evident premeditation are present in this
case.
Third. As to the question of damages, the trial court correctly awarded 50,000.00
as civil indemnity to the heirs of Feliciano Nepomuceno, in accordance with our
recent rulings.53 We find that aside from the civil indemnity, however, the heirs of
Feliciano Nepomuceno are entitled to actual damages for expenses incurred during
Feliciano Nepomucenos wake and burial. To be entitled to such damages, it is
necessary to prove the actual amount of loss with a reasonable degree of certainty,
premised upon competent proof and on the best evidence obtainable by the injured
party.54 In the case at bar, the funeral expenses were shown by a receipt issued by
La Funeraria Oro, Inc. in the amount 14,500.00. 55 In addition, the prosecution
presented receipts issued in favor of Arsenia Nepomuceno to show the payment of
1,800.00 for the construction of Feliciano Nepomucenos grave 56 and 7,500.00
for the family lot located at the Taytay Municipal Cemetery. 57 These receipts are
sufficient to prove the amount of actual damages with reasonable certainty. The
heirs of the victim are, therefore, entitled to the full amount of 23,800.00 as
actual damages representing the expenses sustained by them for the death of
Feliciano Nepomuceno.
As regards the victims loss of earning capacity, the only evidence offered by the
prosecution is the widows testimony that, at the time of his death, Feliciano
Nepomuceno was earning 1,800.00 a month. Awards for the loss of earning
capacity partake of the nature of damages and must thus be proved not only by
credible and satisfactory evidence but also by unbiased proof. 58 In the case at bar,
we find the testimony by the widow Arsenia Nepomuceno to be self-serving and
insufficient to justify an award of unearned income to her.
WHEREFORE, the decision of the Regional Trial Court, Branch 74, Antipolo,
Rizal is AFFIRMED with the MODIFICATION that, in addition to the award of
50,000.00 as civil indemnity, accused-appellant is ordered to pay to the heirs of
the victim Feliciano Nepomuceno the amount of 23,800.00 as actual damages for
the expenses incurred by them as a result of the victims death. The decision of the
trial court is final as to Armando Andres who did not appeal therefrom.
SO ORDERED.
Quisumbing, Buena, and De Leon, Jr., JJ., concur.
Bellosillo, J., (Chairman), on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. RTJ-96-1353 March 11, 1997
DANILO B. PARADA, complainant,
vs.
JUDGE LORENZO B. VENERACION, REGIONAL TRIAL COURT,
BRANCH 47, MANILA, respondent.
TORRES, JR., J.:
The case before us stems from a verified complaint filed by Danilo B. Parada
against respondent Judge Lorenzo B. Veneracion for gross ignorance of the law,
abuse of authority and rendering unjust and erroneous interlocutory orders and
judgment in connection with Criminal Cases Nos. 93-121385 to 88,
entitled People vs. Danilo Parada, which led to complainant Parada's "premature
incarceration" at the Makati City Jail and Muntinlupa National Penitentiary.
The undisputed facts of the case as found by the Office of the Court Administrator
are as follows:
Complainant herein is the accused in the aforementioned case
for four (4) counts of estafa which were initially raffled to
Branch 30, RTC, Manila presided by Judge Senecio Ortile.
Complainant is also duly bonded with the Eastern Assurance and
Surety Corporation (EASCO). On October 23, 1993 complainant
notified said court formally thru counsel of his change of address
from 219 Cityland Condominium, Buendia Extension, Makati,
Metro Manila to 2412 Nobel St., Bo. San Isidro, Makati, Metro
Manila. On October 27, 1993 he also notified the Manager of the
bonding company of his change of address. On February 8,
1994, Judge Ortile inhibited himself from trying the said case
and thus, the case was re-raffled to the sala of respondent Judge
Lorenzo Veneracion, and per order of April 26, 1994, the
hearing of the case was set for June 3, 6, 7 and 8, 1994.
Apparently, the notice of hearing dated April 27, 1994 was sent
to complainant's former address and that for failure of accused-
complainant to appear on June 3, 1994, respondent ordered the
arrest of herein accused-complainant, ordering the confiscation
of the bond and a trial in absentia was conducted. Respondent
Judge likewise assigned a counsel de officio, Atty. Jesse Tiburan
of the Public Attorney's Office (PAO) as counsel for the
accused.
. . . Furthermore, a warrant of arrest was issued on June 3, 1994
with "no bail recommended".
On June 6, 7 and 8, 1994, respondent court issued orders noting
the failure of the petitioner to appear and proceeded with the trial
in absentia. On the hearing of June 8, 1994 the motion of
counsel de officio of accused-complainant that defense be
allowed to present evidence upon petitioner's arrest, was denied
and further held that the "failure of the accused to appear is a
waiver of his right to adduce evidence".
. . . . On November 25, 1994, a decision was rendered convicting
herein accused-appellant of the crime and the decision was
promulgated despite his absence. Accused-complainant was
arrested and brought to the Makati City Jail.
Accused-complainant filed a Petition for Habeas
Corpus, Certiorari and Annulment of Judgment with prayer for
 immediate relief with the Court of Appeals and was docketed as
CA-GR. SP No. 37340 entitled "Danilo Parada vs. Judge
Lorenzo B. Veneracion, et. al.".
On August 18, 1995, the Court of Appeals promulgated a
decision declaring the decision dated November 25, 1995 of
respondent court null and void and further ordering the case to
be remanded to respondent for further proceeding in order to
afford accused-complainant the opportunity to rebut the
testimonies of the prosecution witnesses and documentary
evidence against him as well as present his evidence.1
Subsequently, Parada filed with this Court the instant complaint dated March 11,
1996 against the respondent Judge Veneracion in connection with the decision and
interlocutory orders rendered by the latter in Criminal Cases Nos. 93-121385 to
88. He alleged, inter alia, that the respondent Judge is guilty of ignorance of the
law when he did not follow the legal requirements of a valid trial in absentia which
led to his conviction and premature incarceration, that the order of his arrest with
no recommendation for bail was erroneous, and that respondent Judge abused his
authority when he issued the June 8, 1994 order denying the motion of Parada's
counsel de oficio to allow him to present his evidence upon his arrest. Parada thus
prayed for the dismissal from service of the respondent Judge and that the latter be
barred from railroading the subject Criminal Cases Nos. 93-121385 to 88.
On June 4, 1996, the Office of the Court Administrator received the respondent
Judge's comment to Parada's complaint, the pertinent portion of which reads:
xxx xxx xxx
1. That the herein complaint is purely and plainly a "harassment
suit" arising from the Decision rendered in the case of People
vs. Danilo Parada for estafa;
2. That the charges therein are denied because they are not based
on the facts and of the records of the case, the herein Judge
merely acted with compassion upon receipt of the records of
these cases from another sala, after having been informed that
the private complainants merely borrowed from "loan sharks"
the money given to the accused Danilo Parada and that they are
only interested in compelling said accused to return their money,
not in sending said accused to jail;
3. That the herein Judge acted in good faith in the trial of the
said cases.2
Unfazed by the foregoing assertions of the respondent Judge, the Office of the
Court Administrator on the contrary held that:
xxx xxx xxx
Respondent's general denial of the allegations imputed to him
does not belie any of the facts which lead to the incarceration of
the complainant. Thus, his failure to deny each and every
specific allegations can be construed as admission on his part.
Moreover, trial in absentia may proceed only if the accused
failed to appear at the trial without justification despite due
notice. In this case, complainant was never notified of any
hearing from the time he changed his address up to the
promulgation of the decision despite the fact that he notified the
court and his bonding company.
xxx xxx xxx
Respondent issued a warrant for the arrest of the accused-
complainant with no "bail recommended" despite the fact that
the crime charged was bailable and denied the motion of his
counsel for the accused to adduce evidence upon accused's
arrest. Clearly, respondent denied complainant his right to due
process.3
On the basis of these observations, the Office of the Court Administrator
recommended that respondent Judge Veneracion be fined in the amount of
P10,000.00 with a warning that a commission of the same or similar infraction
shall be dealt with more severely.
We agree with the findings of the Office of the Court Administrator.
Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial may
proceed notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable. The requisites then of a valid trial
in absentia are: (1) the accused has already been arraigned; (2) he has been duly
notified of the trial; and (3) his failure to appear is unjustifiable. 4
In the subject criminal cases, requisite numbers two (2) and three (3) of a valid
trial in absentia are clearly wanting. Parada had not been duly notified of the trial
because the notice of hearing dated April 27, 1994 was sent to the former address
of Parada's counsel despite the fact that the latter formally notified the court of his
change of address. His failure to appear therefore in the June 3, 6, 7 and 8, 1994
hearings is justified by the absence of a valid service of notice of hearing to him.
As a rule, where a party appears by attorney in an action or proceeding in a court
of record, all notices required to be given therein must be given to the attorney of
record. 5 Accordingly, notices to counsel should be properly sent to his address of
record and unless the counsel files a notice of change of address, his official
address remains to be that of his address of record. 6
It is undisputed that Parada's counsel filed a notice of change of address on
October 23, 1993. As such, the respondent judge should have already taken
cognizance of the new address when it sent the notice of hearing dated April 27,
1994. It is thus unwarranted for the respondent judge to still send the notice of
hearing to the old address of Parada's counsel because it is not his official address
nor his address of record. Concomitantly, the sending of notice of hearing to his
former address is an invalid service and cannot in any way bind Parada.
It is worthy to stress that due process of law in judicial proceedings requires that
the accused must be given an opportunity to be heard. He has the right to be
present and defend in person at every stage of the proceedings. Incidentally, the
right to a hearing carries with it the right to be notified of every incident of the
proceedings in court. Notice to a party is essential to enable him to adduce his own
evidence and to meet and refute the evidence submitted by the other party. 7 No
less than the Constitution provides that no person shall be held to answer for a
criminal offense without due process of law. A violation therefore of any of the
rights accorded the accused constitutes a denial of due process of law. The
circumstantial setting of the instant case as weighed by the basic standards of fair
play impels us to so hold that the trial in absentia of Parada and his subsequent
conviction are tainted with the vice of nullity, for evidently Parada was denied due
process of law.
Judges, by the very delicate nature of their functions in dispensing justice, should
be more circumspect in the performance of their duties. 8 In resolving matters in
litigation, they should endeavor assiduously to ascertain the facts and the
applicable laws. Had respondent judge carefully and diligently studied the records
of the case, he would have surely noticed the change of address, and his
questioned orders, which eventually led to Parada's unwarranted deprivation of
liberty, could not have been precipitately issued.
Likewise, the warrant of arrest with no recommendation for bail that was issued by
respondent Judge on June 3, 1994 is a downright violation of Parada's
constitutional right to bail. The rule is clear that unless charged with offenses
punishable by reclusion perpetua and the evidence of guilt is strong, all persons
detained, arrested or otherwise under the custody of the law are entitled to bail as a
matter of right. It should be noted that the crime with which Parada was charged is
estafa9 which is undoubtedly a bailable offense. This circumstance could not have
escaped the attention of the respondent judge when he issued on June 3, 1994 the
order of arrest of Parada with no recommendation for his bail. In so doing,
respondent judge exhibited that degree of ignorance so gross which the Court can
not countenance. Judges are required by Canon 3, Rule 3.01 of the Code of
Judicial Conduct to be faithful to the law and maintain professional
competence. 10 They are called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules; it is imperative that he be
conversant with basic legal principles. 11
WHEREFORE, respondent Judge Lorenzo B. Veneracion is FINED P10,000.00
for disregarding Parada's right to procedural due process and for showing gross
ignorance of the law, with a STERN WARNING that a repetition of a similar act
in the future will be dealt with more severely.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of
their basic rights. The constitution is an overarching sky that covers all in its
protection. The case at bar involves the rights to life, liberty and security in the
first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and
set aside on both questions of fact and law, the Decision promulgated by the Court
of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and
Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief
of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)2 filed before this Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein petitioners (therein respondents)
and/or their officers and agents from depriving them of their right to liberty and
other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders,
and all other legal and equitable reliefs under Article VIII, Section 5(5) 3 of the
1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution
dated August 24, 2007, we (1) ordered the Secretary of the Department of National
Defense and the Chief of Staff of the AFP, their agents, representatives, or persons
acting in their stead, including but not limited to the Citizens Armed Forces
Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them
from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition,
to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs.
They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a verified return within the period
provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed
for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing,
render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just
and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the Division of Associate
Justice Lucas P. Bersamin to conduct the summary hearing on the petition
on November 8, 2007 at 2:00 p.m. and decide the petition in accordance
with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of
therein petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of
the investigation undertaken in connection with their case,
except those already on file herein;
2. To confirm in writing the present places of official assignment
of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within
five days from notice of this decision.
3. To cause to be produced to this Court all medical reports,
records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to the
petitioners, to include a list of medical and (sic) personnel
(military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this
decision.
The compliance with this decision shall be made under the signature and
oath of respondent AFP Chief of Staff or his duly authorized deputy, the
latter's authority to be express and made apparent on the face of the sworn
compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by
herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him
if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to
the light, then forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de
la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all
acted as lookout. They were all members of the CAFGU and residing in Manuzon,
San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he
also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded.
Before being blindfolded, he saw the faces of the soldiers who took him. Later, in
his 18 months of captivity, he learned their names. The one who drove the van was
Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or
older. The leader of the team who entered his house and abducted him was
"Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years
old.14
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldo's. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the
head and other parts of his body with the butt of their guns for about 15 minutes.
After which, Reynaldo was brought to his (Raymond's) room and it was his
(Raymond's) turn to be beaten up in the other room. The soldiers asked him if he
was a member of the New People's Army. Each time he said he was not, he was hit
with the butt of their guns. He was questioned where his comrades were, how
many soldiers he had killed, and how many NPA members he had helped. Each
time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them "sir," and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw
their faces when they arrived and before the blindfold was put on. He noticed that
the uniform of the high officials was different from those of the other soldiers. One
of those officials was tall and thin, wore white pants, tie, and leather shoes, instead
of combat boots. He spoke in Tagalog and knew much about his parents and
family, and a habeas corpus case filed in connection with the respondents'
abduction.16 While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up. When the
guards got drunk, they also manhandled respondents. During this time, Raymond
was fed only at night, usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his
stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning wood.
When he could no longer endure the torture and could hardly breathe, they
stopped. They then subjected Reynaldo to the same ordeal in another room. Before
their torturers left, they warned Raymond that they would come back the next day
and kill him.18
The following night, Raymond attempted to escape. He waited for the guards to
get drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his chains.
After walking through a forested area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing the laundry, asked where he
was and the road to Gapan. He was told that he was in Fort Magsaysay.19 He
reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place
near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly,
kicked, and hit with chains until his back bled. They poured gasoline on him. Then
a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see
Raymond before he was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds
were treated. When the wounds were almost healed, the torture resumed,
particularly when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a
room enclosed by steel bars. He stayed all the time in that small room measuring 1
x 2 meters, and did everything there, including urinating, removing his bowels,
bathing, eating and sleeping. He counted that eighteen people22 had been detained
in that bartolina, including his brother Reynaldo and himself.23
Raymond responded that he would not be because he did not believe that Gen.
Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."

For about three and a half months, the respondents were detained in Fort
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na
Magsaysay. They were kept in a small house with two rooms and a kitchen. One mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa
room was made into the bartolina. The house was near the firing range, helipad magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
and mango trees. At dawn, soldiers marched by their house. They were also
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa
sometimes detained in what he only knew as the "DTU." 24
bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno."28
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were Respondents agreed to do as Gen. Palparan told them as they felt they could not do
feeling, they replied that they had a hard time urinating, their stomachs were
otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men - the
aching, and they felt other pains in their body. The next day, two ladies in white
same group that abducted them - brought them to their parents' house. Raymond
arrived. They also examined respondents and gave them medicines, including
was shown to his parents while Reynaldo stayed in the Revo because he still could
orasol, amoxicillin and mefenamic acid. They brought with them the results of
not walk. In the presence of Hilario and other soldiers, Raymond relayed to his
respondents' urine test and advised them to drink plenty of water and take their parents what Gen. Palparan told him. As they were afraid, Raymond's parents
medicine. The two ladies returned a few more times. Thereafter, medicines were acceded. Hilario threatened Raymond's parents that if they continued to join
sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at
human rights rallies, they would never see their children again. The respondents
Puti. Respondents were kept in the DTU for about two weeks. While there, he met
were then brought back to Sapang.29
a soldier named Efren who said that Gen. Palparan ordered him to monitor and
take care of them.25
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He
was talking with the four "masters" who were there: Arman, Ganata, Hilario and
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big
Efren and several other armed men wearing fatigue suits, went to a detachment in
white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to
Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks
gain back his strength and be healthy and to take the medicine he left for him and
in a big two-storey house. Hilario and Efren stayed with them. While there, Reynaldo. He said the medicine was expensive at Php35.00 each, and would make
Raymond was beaten up by Hilario's men.26 them strong. He also said that they should prove that they are on the side of the
military and warned that they would not be given another chance. 31 During his
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, testimony, Raymond identified Gen. Palparan by his picture. 32
Bulacan on board the Revo. They were detained in a big unfinished house inside
the compound of "Kapitan" for about three months. When they arrived in Sapang, One of the soldiers named Arman made Raymond take the medicine left by Gen.
Gen. Palparan talked to them. They were brought out of the house to a basketball Palparan. The medicine, named "Alive," was green and yellow. Raymond and
court in the center of the compound and made to sit. Gen. Palparan was already
Reynaldo were each given a box of this medicine and instructed to take one
waiting, seated. He was about two arms' length away from respondents. He began
capsule a day. Arman checked if they were getting their dose of the medicine. The
by asking if respondents felt well already, to which Raymond replied in the
"Alive" made them sleep each time they took it, and they felt heavy upon waking
affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He
up.33
then asked Raymond if he would be scared if he were made to face Gen. Palparan.
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan.
While there, he saw again Ganata, one of the men who abducted him from his
house, and got acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big
white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-
minute ride, his blindfold was removed. Chains were put on him and he was kept
in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of the
Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with "Allan" whose name they later came to know as
Donald Caigas, called "master" or "commander" by his men in the 24 th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed. 37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September 2006 to
November 2006, and Raymond was instructed to continue using the name "Oscar"
and holding himself out as a military trainee. He got acquainted with soldiers of
the 24th Infantry Battalion whose names and descriptions he stated in his
affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There
were many huts in the camp. They stayed in that camp until May 8, 2007. Some
soldiers of the battalion stayed with them. While there, battalion soldiers whom
Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with
their guns. Sherlyn and Karen also suffered enormous torture in the camp. They
were all made to clean, cook, and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers
of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA
members in his house.40 Another time, in another "Operation Lubog," Raymond
was brought to Barangay Orion in a house where NPA men stayed. When they
arrived, only the old man of the house who was sick was there. They spared him
and killed only his son right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred
to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp.
Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami.
Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser.
Sabi ni Donald na kung mayroon man kaming makita o marinig, walang
nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga
bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y
sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo.
May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita.
Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog.
Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit
hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita
malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
 Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo.
Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay
sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain
ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala
siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog
na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3
o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami
kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na
yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay
at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan,
ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also
farm his land, in exchange for which, he would take care of the food of their
family. They were also told that they could farm a small plot adjoining his land
and sell their produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent
themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid
Php200.00 or Php400.00 and they saved their earnings. When they had saved
Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone
as he wanted to exchange text messages with a girl who lived nearby. A phone was
pawned to him, but he kept it first and did not use it. They earned some more until
they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted
respondents to Nonong, the head of the guards. Respondents' house did not have
electricity. They used a lamp. There was no television, but they had a radio. In the
evening of August 13, 2007, Nonong and his cohorts had a drinking session. At
about 1:00 a.m., Raymond turned up the volume of the radio. When none of the
guards awoke and took notice, Raymond and Reynaldo proceeded towards the
highway, leaving behind their sleeping guards and barking dogs. They boarded a
bus bound for Manila and were thus freed from captivity. 45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit
insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers
he got acquainted with in the 18 months he was detained. When Raymond
attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and
told that they were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he
could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario.
He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He
was instructed to use the name "Rodel" and to represent himself as a military
trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in
his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan
and made to wait in the vehicle while Hilario was buying. He was also brought to
Tondo, Manila where Hilario delivered boxes of "Alive" in different houses. In
these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while
still in Bulacan, but allowed to remove the blindfold once outside the province. In
one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson." 46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical examination.
His findings showed that the scars borne by respondents were consistent with their
account of physical injuries inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents' escape, and the results thereof
were reduced into writing. Dr. Molino took photographs of the scars. He testified
that he followed the Istanbul Protocol in conducting the examination. 47
Petitioners dispute respondents' account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return
of the Writ of Amparo admitting the abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado, disappeared
or under the custody by the military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by petitioners' parents before
the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj.
Gen. Jovito Palparan, as Commander of the 7 th Infantry Division in
Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army, and members of the
Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael
dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy
Mendoza and Rudy Mendoza. The respondents therein submitted a return
of the writ... On July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic)
Jovito S. Palparan, then Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
Ecija, upon a finding that no evidence was introduced to establish their
personal involvement in the taking of the Manalo brothers. In a Decision
dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his involvement in any capacity
in the disappearance of the Manalo brothers, although it held that the
remaining respondents were illegally detaining the Manalo brothers and
ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein
petitioner) Secretary of National Defense, which attested that he assumed office
only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged
abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of
the AFP units in the field, nor in any way micromanage the AFP
operations. The principal responsibility of the Secretary of National
Defense is focused in providing strategic policy direction to the
Department (bureaus and agencies) including the Armed Forces of the
Philippines;
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP to
institute immediate action in compliance with Section 9(d) of
the Amparo Rule and to submit report of such compliance... Likewise, in
a Memorandum Directive also dated October 31, 2007, I have issued a
policy directive addressed to the Chief of Staff, AFP that the AFP should
adopt the following rules of action in the event the Writ of Amparo is
issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may
aid in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in
the death or disappearance; and
(6) to bring the suspected offenders before a competent court. 49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached
to the Return of the Writ, attesting that he received the above directive of therein
respondent Secretary of National Defense and that acting on this directive, he did
the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of the
AFP for the purpose of establishing the circumstances of the alleged
disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate conduct
of the investigation on the matter by the concerned unit/s, dispatching
 Radio Message on November 05, 2007, addressed to the Commanding
General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO
24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of
this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ
of Amparohas been sought for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest
efforts to establish the surrounding circumstances of the disappearances
of the petitioners and to bring those responsible, including any military
personnel if shown to have participated or had complicity in the
commission of the complained acts, to the bar of justice, when warranted
by the findings and the competent evidence that may be gathered in the
process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case
in this Court, involving Cadapan, Empeo and Merino, which averred among
others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately went
to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn Cadapan,
Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the
24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries
with the Philippine National Police, Limay, Bataan regarding the alleged
detentions or deaths and were informed that none was reported to their
good office;
13) I also directed Company Commander 1 st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged to be a
detention place where Sherlyn Cadapan, Karen Empeo and Manuel
Merino were detained. As per the inquiry, however, no such beachhouse
was used as a detention place found to have been used by armed men to
detain Cadapan, Empeo and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein petitioners could not be secured
in time for the submission of the Return and would be subsequently submitted. 52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of
this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and
a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of
the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of
Staff,56 to investigate the alleged abduction of the respondents by CAFGU
auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-
CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He
was directed to determine: (1) the veracity of the abduction of Raymond and
Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if any.57 Jimenez testified that this
particular investigation was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw news about the abduction of
the Manalo brothers on the television, and he was concerned about what was
happening within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29, 2006. 59 The
investigation started at 8:00 in the morning and finished at 10:00 in the
evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other
witnesses summoned and investigated61 as according to Jimenez, the directive to
him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63 The six persons
were not known to Jimenez as it was in fact his first time to meet them. 64 During
the entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons. 65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their
statements as the printing of their statements was interrupted by a power failure.
Jimenez testified that the two signed on May 30, 2006, but the jurats of their
statements indicated that they were signed on May 29, 2006.66 When the Sworn
Statements were turned over to Jimenez, he personally wrote his investigation
report. He began writing it in the afternoon of May 30, 2006 and finished it on
June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel. 68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006
for their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case
for Abduction in the civil court against the herein suspects: Michael dela
Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy
Mendoza and Rudy Mendoza as alleged members of the Citizen Armed
Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He
claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond
and Reynaldo Manalo. As to the allegation that he was one of the
suspects, he claims that they only implicated him because he was a
CAFGU and that they claimed that those who abducted the Manalo
brothers are members of the Military and CAFGU. Subject vehemently
denied any participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29
May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member
based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an NPA Leader operating in
their province. That at the time of the alleged abduction of the two (2)
brothers and for accusing him to be one of the suspects, he claims that on
February 14, 2006, he was one of those working at the concrete chapel
being constructed nearby his residence. He claims further that he just
came only to know about the incident on other day (15 Feb 06) when he
was being informed by Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak
na Bato Detachment. That being a neighbor, he was very much aware
about the background of the two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy. and he also knew their
elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one
of the accused, he claims that on 14 February 2006, he was at Brgy.
Magmarate, San Miguel, Bulacan in the house of his aunt and he learned
only about the incident when he arrived home in their place. He claims
further that the only reason why they implicated him was due to the fact
that his mother has filed a criminal charge against their brother Rolando
Manalo @ KA BESTRE who is an NPA Commander who killed his
father and for that reason they implicated him in support of their brother.
Subject CAA vehemently denied any involvement on the abduction of
said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in
(Exhibit "E") states that he is a resident of Brgy. Marungko, Angat,
Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to
him being his barriomate when he was still unmarried and he knew them
since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He
claims that he was being informed only about the incident lately and he
was not aware of any reason why the two (2) brothers were being
abducted by alleged members of the military and CAFGU. The only
reason he knows why they implicated him was because there are those
people who are angry with their family particularly victims of summary
execution (killing) done by their brother @ KA Bestre Rolando Manalo
who is an NPA leader. He claims further that it was their brother @ KA
BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of
the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at
Biak na Bato, San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA and that their brother
Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the
accused, he claims that on 14 February 2006, he was in his residence at
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the alleged abduction of the two
(2) brothers and learned only about the incident when rumors reached him
by his barrio mates. He claims that his implication is merely fabricated
because of his relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006
in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that he knew very well the brothers Raymond and
Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or
sympathizers of the CPP/NPA and whose elder brother Rolando Manalo
@ KA BESTRE is an NPA leader operating within the area. Being one of
the accused, he claims that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their place and he learned only
about the incident which is the abduction of Raymond and Reynaldo
Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further that he is truly innocent
of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains
loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular
case, the proof of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo that transpired on 14
February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to that
incident is considered doubtful, hence, no basis to indict them as charged
in this investigation.
Though there are previous grudges between each families (sic) in the past
to quote: the killing of the father of Randy and Rudy Mendoza by @ KA
BESTRE TN: Rolando Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction as a form of revenge. As it
was also stated in the testimony of other accused claiming that the
Manalos are active sympathizers/supporters of the CPP/NPA, this would
not also mean, however, that in the first place, they were in connivance
with the abductors. Being their neighbors and as members of CAFGU's,
they ought to be vigilant in protecting their village from any intervention
by the leftist group, hence inside their village, they were fully aware of
the activities of Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged
charges of abduction committed by the above named respondents has not
been established in this investigation. Hence, it lacks merit to indict them
for any administrative punishment and/or criminal liability. It is therefore
concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela
Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's assessment
of the foregoing evidence and assail the December 26, 2007 Decision on the
following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT
TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED,
AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND
MANALO.
II.
 THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE
COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS
OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO
INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14,
2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on
July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social
spectrum, as well as all the stakeholders in the justice system" 72 participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killing and enforced disappearances." 73 It was an exercise
for the first time of the Court's expanded power to promulgate rules to protect our
people's constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime.74 As
the Amparo Rule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings."75 On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the
protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish.77 In 1837, de Tocqueville's Democracy in America became available in
Mexico and stirred great interest. Its description of the practice of judicial review
in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio
Rejn, drafted a constitutional provision for his native state, Yucatan, 79 which
granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national
constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the
exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks by the
Legislative and Executive powers of the federal or state governments,
limiting themselves to granting protection in the specific case in
litigation, making no general declaration concerning the statute or
regulation that motivated the violation.80
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to restore the
petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial
power characteristic of the civil law tradition which prevails in Mexico. It enables
courts to enforce the constitution by protecting individual rights in particular cases,
but prevents them from using this power to make law for the entire nation. 82
The writ of Amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each
country.83 It became, in the words of a justice of the Mexican Federal Supreme
Court, one piece of Mexico's self-attributed "task of conveying to the world's legal
heritage that institution which, as a shield of human dignity, her own painful
history conceived."84 What began as a protection against acts or omissions of
public authorities in violation of constitutional rights later evolved for several
purposes: (1) Amparo libertad for the protection of personal freedom, equivalent
to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) Amparo administrativo for
the judicial review of administrative actions; and (5) Amparo agrario for the
protection of peasants' rights derived from the agrarian reform process. 85
In Latin American countries, except Cuba, the writ of Amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries adopted
an all-encompassing writ to protect the whole gamut of constitutional rights,
including socio-economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ of Amparo only
to some constitutional guarantees or fundamental rights. 87
In the Philippines, while the 1987 Constitution does not explicitly provide for the
writ of Amparo, several of the above Amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." The
Clause accords a similar general protection to human rights extended by the
Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in several provisions
of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,90 these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate
interim and permanent reliefs under the Amparo Rule, this hybrid writ of the
common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal
killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is
not an action to determine criminal guilt requiring proof beyond reasonable doubt,
or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive
proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in that
it breaks the expectation of impunity in the commission of these offenses; it is
curative in that it facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the long run, the
goal of both the preventive and curative roles is to deter the further commission of
extralegal killings and enforced disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction,
and Temporary Restraining Order" 92 to stop petitioners and/or their officers and
agents from depriving the respondents of their right to liberty and other basic
rights on August 23, 2007,93 prior to the promulgation of the Amparo Rule. They
also sought ancillary remedies including Protective Custody Orders, Appointment
of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. When the Amparo Rule came into effect on
October 24, 2007, they moved to have their petition treated as an Amparo petition
as it would be more effective and suitable to the circumstances of the Manalo
brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners'
first argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-serving affidavit/testimony of
herein respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore of
petitioners' cause of action, to determine whether the evidence presented is metal-
strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of
action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The
parties shall establish their claims by substantial evidence.
 xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court
of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were
continuously detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by respondent
Raymond Manalo in a clear and convincing manner. His account is dotted with
countless candid details of respondents' harrowing experience and tenacious will to
escape, captured through his different senses and etched in his memory. A few
examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga kadena." 99 "Tinanong ko sa isang
kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text
ang isang babae na nakatira sa malapit na lugar." 100
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military personnel
and CAFGU auxiliaries. Raymond recalled that the six armed men who
barged into his house through the rear door were military men based on
their attire of fatigue pants and army boots, and the CAFGU auxiliaries,
namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the abduction.
Raymond was sure that three of the six military men were Ganata, who
headed the abducting team, Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as narrated by the
petitioners, validated their assertion of the participation of the elements of
the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the
suspicion that the petitioners were either members or sympathizers of the
NPA, considering that the abductors were looking for Ka Bestre, who
turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction
were, at best, merely superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into the participation of
military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the
very least, he was aware of the petitioners' captivity at the hands of men
in uniform assigned to his command. In fact, he or any other officer
tendered no controversion to the firm claim of Raymond that he (Gen.
Palparan) met them in person in a safehouse in Bulacan and told them
what he wanted them and their parents to do or not to be doing. Gen.
Palparan's direct and personal role in the abduction might not have been
shown but his knowledge of the dire situation of the petitioners during
their long captivity at the hands of military personnel under his command
bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of
law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with
the abduction or the detention. Hilario's involvement could not, indeed,
be then established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried following
the abduction, did not testify. (See the decision of the habeas proceedings
at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-
300 van in which the petitioners were brought away from their houses on
February 14, 2006. Raymond also attested that Hilario participated in
subsequent incidents during the captivity of the petitioners, one of which
was when Hilario fetched them from Fort Magsaysay on board a Revo
and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan
where they were detained for at least a week in a house of strong
 materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on board the Revo, to an
unfinished house inside the compound of Kapitan where they were kept
for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early morning to the house of the
petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their
sons should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206)
There were other occasions when the petitioners saw that Hilario had a
direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and
forced disappearance of the petitioners was established. The participation
of other military personnel like Arman, Ganata, Cabalse and Caigas,
among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's statements
were not corroborated by other independent and credible pieces of
evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit
of respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,103 also corroborate respondents' accounts of the
torture they endured while in detention. Respondent Raymond Manalo's familiarity
with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony
and confirmed by Lt. Col. Jimenez to be the "Division Training Unit," 104 firms up
respondents' story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commission's findings of fact were mostly based on
the consistent and credible statements, written and oral, made by Sister Ortiz
regarding her ordeal.106 These statements were supported by her recognition of
portions of the route they took when she was being driven out of the military
installation where she was detained.107 She was also examined by a medical doctor
whose findings showed that the 111 circular second degree burns on her back and
abrasions on her cheek coincided with her account of cigarette burning and torture
she suffered while in detention.108
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify
in the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of Amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have escaped
from captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not "free in every sense
of the word"109 as their "movements continue to be restricted for fear that people
they have named in their Judicial Affidavits and testified against (in the case of
Raymond) are still at large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of the Philippines and are, thus,
in a position to threaten respondents' rights to life, liberty and
security."110 (emphasis supplied) Respondents claim that they are under threat of
being once again abducted, kept captive or even killed, which constitute a
direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point out that this
right is "often associated with liberty;" it is also seen as an "expansion of rights
based on the prohibition against torture and cruel and unusual punishment."
Conceding that there is no right to security expressly mentioned in Article III of
the 1987 Constitution, they submit that their rights "to be kept free from torture
and from incommunicado detention and solitary detention places112 fall under the
general coverage of the right to security of person under the writ of Amparo."
They submit that the Court ought to give an expansive recognition of the right to
security of person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, "The State values the dignity of every human
person and guarantees full respect for human rights." Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful
only if there is no undue restraint by the State on the exercise of that
liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty" 115 or being put under "monitoring and
surveillance."116
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge...
At the core of this guarantee is the immunity of one's person, including the
extensions of his/her person - houses, papers, and effects - against government
intrusion. Section 2 not only limits the state's power over a person's home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.117 The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and
property and unlawful invasion of the security of the home by officers of
the law acting under legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams v. New York, 192 U.S.
858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is
an essential condition to the dignity and happiness and to the peace
and security of every individual, whether it be of home or of persons
and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches and seizures must
be deemed absolute as nothing is closer to a man's soul than the
serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and
reasons.119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the right
to be alive121 - upon which the enjoyment of all other rights is preconditioned - the
right to security of person is a guarantee of the secure quality of this life, viz: "The
life to which each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather, it is a life lived
with the assurance that the government he established and consented to, will
protect the security of his person and property. The ideal of security in life and
property... pervades the whole history of man. It touches every aspect of man's
existence."122 In a broad sense, the right to security of person "emanates in a
person's legal and uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation. It includes the right to exist, and the right to enjoyment
of life while existing, and it is invaded not only by a deprivation of life but also of
those things which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual." 123
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a
world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that "freedom
from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word
"security" itself means "freedom from fear."125 Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of
person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure
as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded as
people react differently. The degree of fear can vary from one person to another
with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct
to say that the "right to security" is actually the "freedom from threat." Viewed
in this light, the "threatened with violation" Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, one's body cannot be searched or
invaded without a search warrant.128 Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury increases, the danger to
life itself escalates. Notably, in criminal law, physical injuries constitute a crime
against persons because they are an affront to the bodily integrity or security of a
person.129
Physical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit, reveal
or fabricate incriminating information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes the exercise of
free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means
which vitiate the free will shall be used against him (any person under
investigation for the commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of detention are
prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free
will - although not involving invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of "freedom from threat" as afore-
discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons
under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of person as a right against
torture was made by the European Court of Human Rights (ECHR) in the recent
case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained,
alleged that the state authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the European Convention
on Human Rights provides, viz: "Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law ..." (emphases supplied) Article 3,
on the other hand, provides that "(n)o one shall be subjected to torture or to
inhuman or degrading treatment or punishment." Although the application failed
on the facts as the alleged ill-treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to
take measures in order to ensure his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply
with the procedural obligation under Art.3 to conduct an effective
investigation into his allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has
also made a statement that the protection of the bodily integrity of women may
also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.132
Third, the right to security of person is a guarantee of protection of one's
rights by the government. In the context of the writ of Amparo, this right is built
into the guarantees of the right to life and liberty under Article III, Section 1 of
the 1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section 2.
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11 of
the 1987 Constitution.133 As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The
Inter-American Court of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,134viz:
(The duty to investigate) must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government.135
This third sense of the right to security of person as a guarantee of government
protection has been interpreted by the United Nations' Human Rights
Committee136 in not a few cases involving Article 9137 of the ICCPR. While the
right to security of person appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily
be a deprivation of liberty for the right to security of person to be invoked.
In Delgado Paez v. Colombia,138 a case involving death threats to a religion
teacher at a secondary school in Leticia, Colombia, whose social views differed
from those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed
focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the
right to life, the right to liberty and the right to security of the
person. These elements have been dealt with in separate clauses in
the Covenant. Although in the Covenant the only reference to the
right of security of person is to be found in article 9, there is no
evidence that it was intended to narrow the concept of the right to
security only to situations of formal deprivation of liberty. At the
same time, States parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case that, as a matter of
law, States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise
detained. States parties are under an obligation to take reasonable
and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction
would render totally ineffective the guarantees of the
Covenant.139(emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political
activist and prisoner of conscience who continued to be intimidated, harassed, and
restricted in his movements following his release from detention. In a catena of
cases, the ruling of the Committee was of a similar import: Bahamonde v.
Equatorial Guinea,141 involving discrimination, intimidation and persecution of
opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform
in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner
and the harassment he (complainant) suffered because of his investigation of
the murder; and Chongwe v. Zambia,144 involving an assassination attempt on
the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right
to security" not only as prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection of the right to
liberty.145 The ECHR interpreted the "right to security of person" under Article
5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had
been arrested by state authorities and had not been seen since. The family's
requests for information and investigation regarding his whereabouts proved futile.
The claimant suggested that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an
arguable claim that a person has been taken into custody and has not
been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar,
we now determine whether there is a continuing violation of respondents' right to
security.
First, the violation of the right to security as freedom from threat to
respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymond's narration, he was tortured
and poured with gasoline after he was caught the first time he attempted to escape
from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before
he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from captivity
not because they were released by virtue of a lawful order or voluntarily freed by
their abductors. It ought to be recalled that towards the end of their ordeal,
sometime in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still deciding whether
they should be executed. Respondent Raymond Manalo attested in his
affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3
o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. 148
The possibility of respondents being executed stared them in the eye while they
were in detention. With their escape, this continuing threat to their life is apparent,
moreso now that they have surfaced and implicated specific officers in the military
not only in their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel
Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and security.
The threat vitiates their free will as they are forced to limit their movements or
activities.149 Precisely because respondents are being shielded from the
perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life,
liberty and security. Nonetheless, the circumstances of respondents' abduction,
detention, torture and escape reasonably support a conclusion that there is an
apparent threat that they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security, and life, actionable
through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the government.
Apart from the failure of military elements to provide protection to respondents by
themselves perpetrating the abduction, detention, and torture, they also miserably
failed in conducting an effective investigation of respondents' abduction as
revealed by the testimony and investigation report of petitioners' own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the 7 th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated
members of the CAFGU and civilians whom he met in the investigation for the
first time. He was present at the investigation when his subordinate Lingad was
taking the sworn statements, but he did not propound a single question to ascertain
the veracity of their statements or their credibility. He did not call for other
witnesses to test the alibis given by the six implicated persons nor for the family or
neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in
the event the writ of Amparo is issued by a competent court against any members
of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of
witnesses and securing statements from them; determination of the cause, manner,
location and time of death or disappearance; identification and apprehension of the
person or persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he
immediately caused to be issued a directive to the units of the AFP for the purpose
of establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October
31, 2007, respondents have not been furnished the results of the investigation
which they now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents' right to security as a guarantee of
protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is
violated by the apparent threat to their life, liberty and security of person. Their
right to security as a guarantee of protection by the government is likewise
violated by the ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those already in
file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search warrant.
Thus, they claim that the requisites for the issuance of a search warrant must be
complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations
made by respondent Raymond Manalo in his unverified declaration and affidavit,
the documents respondents seek to be produced are only mentioned generally by
name, with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand
of the people such as respondents.
Instead, the Amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the
court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent
judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on
the ground that it violated the search and seizure clause. The Court struck down
the argument and held that the subpoena pertained to a civil procedure that "cannot
be identified or confused with unreasonable searches prohibited by the
Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to
provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of the
persons in whose favor the Writ of Amparo has been sought for as soon as the
same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure
of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, as well as the submission of a list of medical personnel, is
irrelevant, improper, immaterial, and unnecessary in the resolution of the petition
for a writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and
even unwittingly and unnecessarily expose them to threat of personal injury or
even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial jurisdiction.
Such disclosure would also help ensure that these military officers can be served
with notices and court processes in relation to any investigation and action for
violation of the respondents' rights. The list of medical personnel is also relevant in
securing information to create the medical history of respondents and make
appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these This case was originally a Petition for Prohibition, Injunction, and Temporary
rights are snuffed out from victims of extralegal killings and enforced Restraining Order (TRO)2 filed before this Court by herein respondents (therein
disappearances. The writ of Amparo is a tool that gives voice to preys of silent petitioners) on August 23, 2007 to stop herein petitioners (therein respondents)
guns and prisoners behind secret walls. and/or their officers and agents from depriving them of their right to liberty and
other basic rights. Therein petitioners also sought ancillary remedies, Protective
WHEREFORE, premises considered, the petition is DISMISSED. The Decision Custody Orders, Appointment of Commissioner, Inspection and Access Orders,
of the Court of Appeals dated December 26, 2007 is affirmed. and all other legal and equitable reliefs under Article VIII, Section 5(5) 3 of the
1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution
SO ORDERED. dated August 24, 2007, we (1) ordered the Secretary of the Department of National
Defense and the Chief of Staff of the AFP, their agents, representatives, or persons
acting in their stead, including but not limited to the Citizens Armed Forces
REYNATO S. PUNO Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them
Chief Justice from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
Republic of the Philippines guaranteed under Article III, Section 14 of the 1987 Constitution.5
SUPREME COURT
Manila While the August 23, 2007 Petition was pending, the Rule on the Writ
of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a
EN BANC Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition,
to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs.
G.R. No. 180906 October 7, 2008 They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, commanding therein respondents to make a verified return within the period
ARMED FORCES OF THE PHILIPPINES,petitioners, provided by law and containing the specific matter required by law; (3) they be
vs. granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed
RAYMOND MANALO and REYNALDO MANALO, respondents. for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing,
render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just
and equitable reliefs.8
DECISION
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
PUNO, C.J.:
petition under the Amparo Rule and further resolved, viz:

While victims of enforced disappearances are separated from the rest of the world
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
behind secret walls, they are not separated from the constitutional protection of
requiring them to file with the CA (Court of Appeals) a verified written
their basic rights. The constitution is an overarching sky that covers all in its
return within five (5) working days from service of the writ. We
protection. The case at bar involves the rights to life, liberty and security in the
REMAND the petition to the CA and designate the Division of Associate
first petition for a writ of Amparo filed before this Court.
Justice Lucas P. Bersamin to conduct the summary hearing on the petition
on November 8, 2007 at 2:00 p.m. and decide the petition in accordance
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in with the Rule on the Writ of Amparo.9
relation to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and
set aside on both questions of fact and law, the Decision promulgated by the Court
On December 26, 2007, the Court of Appeals rendered a decision in favor of
of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and
therein petitioners (herein respondents), the dispositive portion of which reads, viz:
Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief
of Staff, Armed Forces of the Philippines, respondents."
 ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days
from notice of this decision all official and unofficial reports of
the investigation undertaken in connection with their case,
except those already on file herein;
2. To confirm in writing the present places of official assignment
of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within
five days from notice of this decision.
3. To cause to be produced to this Court all medical reports,
records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to the
petitioners, to include a list of medical and (sic) personnel
(military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this
decision.
The compliance with this decision shall be made under the signature and
oath of respondent AFP Chief of Staff or his duly authorized deputy, the
latter's authority to be express and made apparent on the face of the sworn
compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by
herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San
Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him
if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to
the light, then forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay. 12
Among the men who came to take him, Raymond recognized brothers Michael de
la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all
acted as lookout. They were all members of the CAFGU and residing in Manuzon,
San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly taken, he
also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded.
Before being blindfolded, he saw the faces of the soldiers who took him. Later, in
his 18 months of captivity, he learned their names. The one who drove the van was
Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or
older. The leader of the team who entered his house and abducted him was
"Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years
old.14
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldo's. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the
head and other parts of his body with the butt of their guns for about 15 minutes.
After which, Reynaldo was brought to his (Raymond's) room and it was his
(Raymond's) turn to be beaten up in the other room. The soldiers asked him if he
was a member of the New People's Army. Each time he said he was not, he was hit
with the butt of their guns. He was questioned where his comrades were, how
many soldiers he had killed, and how many NPA members he had helped. Each
time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them "sir," and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw
their faces when they arrived and before the blindfold was put on. He noticed that
the uniform of the high officials was different from those of the other soldiers. One
of those officials was tall and thin, wore white pants, tie, and leather shoes, instead
of combat boots. He spoke in Tagalog and knew much about his parents and
family, and a habeas corpus case filed in connection with the respondents'
abduction.16 While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up. When the
guards got drunk, they also manhandled respondents. During this time, Raymond
was fed only at night, usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his
stomach with a piece of wood, slapped his forehead twice with a .45 pistol,
punched him on the mouth, and burnt some parts of his body with a burning wood.
When he could no longer endure the torture and could hardly breathe, they
stopped. They then subjected Reynaldo to the same ordeal in another room. Before
their torturers left, they warned Raymond that they would come back the next day
and kill him.18
The following night, Raymond attempted to escape. He waited for the guards to
get drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his chains.
After walking through a forested area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing the laundry, asked where he
was and the road to Gapan. He was told that he was in Fort Magsaysay. 19 He
reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place
near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly,
kicked, and hit with chains until his back bled. They poured gasoline on him. Then
a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see
Raymond before he was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds
were treated. When the wounds were almost healed, the torture resumed,
particularly when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a
room enclosed by steel bars. He stayed all the time in that small room measuring 1
x 2 meters, and did everything there, including urinating, removing his bowels,
bathing, eating and sleeping. He counted that eighteen people22 had been detained
in that bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained in Fort
Magsaysay. They were kept in a small house with two rooms and a kitchen. One
room was made into the bartolina. The house was near the firing range, helipad
and mango trees. At dawn, soldiers marched by their house. They were also
sometimes detained in what he only knew as the "DTU." 24
At the DTU, a male doctor came to examine respondents. He checked their body
and eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were
aching, and they felt other pains in their body. The next day, two ladies in white
arrived. They also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the results of
respondents' urine test and advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times. Thereafter, medicines were
sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at
Puti. Respondents were kept in the DTU for about two weeks. While there, he met
a soldier named Efren who said that Gen. Palparan ordered him to monitor and
take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with
Efren and several other armed men wearing fatigue suits, went to a detachment in
Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks
in a big two-storey house. Hilario and Efren stayed with them. While there,
Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel,
Bulacan on board the Revo. They were detained in a big unfinished house inside
the compound of "Kapitan" for about three months. When they arrived in Sapang,
Gen. Palparan talked to them. They were brought out of the house to a basketball
court in the center of the compound and made to sit. Gen. Palparan was already
waiting, seated. He was about two arms' length away from respondents. He began
by asking if respondents felt well already, to which Raymond replied in the
affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He
then asked Raymond if he would be scared if he were made to face Gen. Palparan.
Raymond responded that he would not be because he did not believe that Gen.
Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
 Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa
magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa
bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could not do
otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men - the
same group that abducted them - brought them to their parents' house. Raymond
was shown to his parents while Reynaldo stayed in the Revo because he still could
not walk. In the presence of Hilario and other soldiers, Raymond relayed to his
parents what Gen. Palparan told him. As they were afraid, Raymond's parents
acceded. Hilario threatened Raymond's parents that if they continued to join
human rights rallies, they would never see their children again. The respondents
were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He
was talking with the four "masters" who were there: Arman, Ganata, Hilario and
Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big
white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to
gain back his strength and be healthy and to take the medicine he left for him and
Reynaldo. He said the medicine was expensive at Php35.00 each, and would make
them strong. He also said that they should prove that they are on the side of the
military and warned that they would not be given another chance. 31 During his
testimony, Raymond identified Gen. Palparan by his picture. 32
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named "Alive," was green and yellow. Raymond and
Reynaldo were each given a box of this medicine and instructed to take one
capsule a day. Arman checked if they were getting their dose of the medicine. The
"Alive" made them sleep each time they took it, and they felt heavy upon waking
up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan.
While there, he saw again Ganata, one of the men who abducted him from his
house, and got acquainted with other military men and civilians. 34
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 24th Infantry Battalion. He was fetched by three unidentified men in a big
white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-
minute ride, his blindfold was removed. Chains were put on him and he was kept
in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean
outside the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of the
Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his
arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and
Manuel were put in the room with "Allan" whose name they later came to know as
Donald Caigas, called "master" or "commander" by his men in the 24 th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the
detainees that they should be thankful they were still alive and should continue
along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were
brought back to Camp Tecson. They stayed in that camp from September 2006 to
November 2006, and Raymond was instructed to continue using the name "Oscar"
and holding himself out as a military trainee. He got acquainted with soldiers of
the 24th Infantry Battalion whose names and descriptions he stated in his
affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel,
were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There
were many huts in the camp. They stayed in that camp until May 8, 2007. Some
soldiers of the battalion stayed with them. While there, battalion soldiers whom
Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with
their guns. Sherlyn and Karen also suffered enormous torture in the camp. They
were all made to clean, cook, and help in raising livestock. 39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some
other soldiers brought him and Manuel with them to take and kill all sympathizers
of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA
members in his house.40 Another time, in another "Operation Lubog," Raymond
was brought to Barangay Orion in a house where NPA men stayed. When they
arrived, only the old man of the house who was sick was there. They spared him
and killed only his son right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred
to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp.
Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami.
Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser.
Sabi ni Donald na kung mayroon man kaming makita o marinig, walang
nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga
bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y
sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo.
May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita.
Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog.
Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit
hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita
malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo.
Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay
sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain
ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala
siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog
na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o
ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3
o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami
kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na
yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay
at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan,
ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also
farm his land, in exchange for which, he would take care of the food of their
family. They were also told that they could farm a small plot adjoining his land
and sell their produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent
themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from where
they stayed. They helped farm adjoining lands for which they were paid
Php200.00 or Php400.00 and they saved their earnings. When they had saved
Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone
as he wanted to exchange text messages with a girl who lived nearby. A phone was
pawned to him, but he kept it first and did not use it. They earned some more until
they had saved Php1,400.00 between them.
There were four houses in the compound. Raymond and Reynaldo were housed in
one of them while their guards lived in the other three. Caigas entrusted
respondents to Nonong, the head of the guards. Respondents' house did not have
electricity. They used a lamp. There was no television, but they had a radio. In the
evening of August 13, 2007, Nonong and his cohorts had a drinking session. At
about 1:00 a.m., Raymond turned up the volume of the radio. When none of the
guards awoke and took notice, Raymond and Reynaldo proceeded towards the
highway, leaving behind their sleeping guards and barking dogs. They boarded a
bus bound for Manila and were thus freed from captivity. 45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit
insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers
he got acquainted with in the 18 months he was detained. When Raymond
attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and
told that they were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he
could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario.
He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He
was instructed to use the name "Rodel" and to represent himself as a military
trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in
his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan
and made to wait in the vehicle while Hilario was buying. He was also brought to
Tondo, Manila where Hilario delivered boxes of "Alive" in different houses. In
these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while
still in Bulacan, but allowed to remove the blindfold once outside the province. In
one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson."46
Attached to the Return of the Writ was the affidavit of therein respondent (herein
petitioner) Secretary of National Defense, which attested that he assumed office
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
abduction. He also claimed that:
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical examination.
His findings showed that the scars borne by respondents were consistent with their
account of physical injuries inflicted upon them. The examination was conducted
on August 15, 2007, two days after respondents' escape, and the results thereof
were reduced into writing. Dr. Molino took photographs of the scars. He testified
that he followed the Istanbul Protocol in conducting the examination. 47
Petitioners dispute respondents' account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return
of the Writ of Amparo admitting the abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado, disappeared
or under the custody by the military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by petitioners' parents before
the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj.
Gen. Jovito Palparan, as Commander of the 7th Infantry Division in
Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the
Commanding General of the Philippine Army, and members of the
Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael
dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy
Mendoza and Rudy Mendoza. The respondents therein submitted a return
of the writ... On July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic)
Jovito S. Palparan, then Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
Ecija, upon a finding that no evidence was introduced to establish their
personal involvement in the taking of the Manalo brothers. In a Decision
dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his involvement in any capacity
in the disappearance of the Manalo brothers, although it held that the
remaining respondents were illegally detaining the Manalo brothers and
ordered them to release the latter.48
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of
the AFP units in the field, nor in any way micromanage the AFP
operations. The principal responsibility of the Secretary of National
Defense is focused in providing strategic policy direction to the
Department (bureaus and agencies) including the Armed Forces of the
Philippines;
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP to
institute immediate action in compliance with Section 9(d) of
the Amparo Rule and to submit report of such compliance... Likewise, in
a Memorandum Directive also dated October 31, 2007, I have issued a
policy directive addressed to the Chief of Staff, AFP that the AFP should
 adopt the following rules of action in the event the Writ of Amparo is
issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may
aid in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have
brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in
the death or disappearance; and
(6) to bring the suspected offenders before a competent court. 49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached
to the Return of the Writ, attesting that he received the above directive of therein
respondent Secretary of National Defense and that acting on this directive, he did
the following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units of the
AFP for the purpose of establishing the circumstances of the alleged
disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the
result thereof to Higher headquarters and/or direct the immediate conduct
of the investigation on the matter by the concerned unit/s, dispatching
Radio Message on November 05, 2007, addressed to the Commanding
General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO
24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of
this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ
of Amparohas been sought for as soon as the same has been furnished
Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan and Empeo pending before the
Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest
efforts to establish the surrounding circumstances of the disappearances
of the petitioners and to bring those responsible, including any military
personnel if shown to have participated or had complicity in the
commission of the complained acts, to the bar of justice, when warranted
by the findings and the competent evidence that may be gathered in the
process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe
Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case
in this Court, involving Cadapan, Empeo and Merino, which averred among
others, viz:
10) Upon reading the allegations in the Petition implicating the
24th Infantry Batallion detachment as detention area, I immediately went
to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn Cadapan,
Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the
24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries
with the Philippine National Police, Limay, Bataan regarding the alleged
detentions or deaths and were informed that none was reported to their
good office;
13) I also directed Company Commander 1 st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged to be a
detention place where Sherlyn Cadapan, Karen Empeo and Manuel
Merino were detained. As per the inquiry, however, no such beachhouse
was used as a detention place found to have been used by armed men to
detain Cadapan, Empeo and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie
Castillo, and other persons implicated by therein petitioners could not be secured
in time for the submission of the Return and would be subsequently submitted. 52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col.
Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army,
based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of
this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and
a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of
the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of
Staff,56 to investigate the alleged abduction of the respondents by CAFGU
auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-
CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He
was directed to determine: (1) the veracity of the abduction of Raymond and
Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if any.57 Jimenez testified that this
particular investigation was initiated not by a complaint as was the usual
procedure, but because the Commanding General saw news about the abduction of
the Manalo brothers on the television, and he was concerned about what was
happening within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them
execute sworn statements and conducting an investigation on May 29, 2006. 59 The
investigation started at 8:00 in the morning and finished at 10:00 in the
evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other
witnesses summoned and investigated61 as according to Jimenez, the directive to
him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63 The six persons
were not known to Jimenez as it was in fact his first time to meet them.64 During
the entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons.65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their
statements as the printing of their statements was interrupted by a power failure.
Jimenez testified that the two signed on May 30, 2006, but the jurats of their
statements indicated that they were signed on May 29, 2006.66 When the Sworn
Statements were turned over to Jimenez, he personally wrote his investigation
report. He began writing it in the afternoon of May 30, 2006 and finished it on
June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel. 68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006
for their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case
for Abduction in the civil court against the herein suspects: Michael dela
Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy
Mendoza and Rudy Mendoza as alleged members of the Citizen Armed
Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May
2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na
Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He
claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond
and Reynaldo Manalo. As to the allegation that he was one of the
suspects, he claims that they only implicated him because he was a
CAFGU and that they claimed that those who abducted the Manalo
brothers are members of the Military and CAFGU. Subject vehemently
denied any participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29
May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member
based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an NPA Leader operating in
their province. That at the time of the alleged abduction of the two (2)
brothers and for accusing him to be one of the suspects, he claims that on
February 14, 2006, he was one of those working at the concrete chapel
being constructed nearby his residence. He claims further that he just
came only to know about the incident on other day (15 Feb 06) when he
was being informed by Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak
na Bato Detachment. That being a neighbor, he was very much aware
about the background of the two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy. and he also knew their
elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one
of the accused, he claims that on 14 February 2006, he was at Brgy.
Magmarate, San Miguel, Bulacan in the house of his aunt and he learned
only about the incident when he arrived home in their place. He claims
further that the only reason why they implicated him was due to the fact
that his mother has filed a criminal charge against their brother Rolando
Manalo @ KA BESTRE who is an NPA Commander who killed his
father and for that reason they implicated him in support of their brother.
Subject CAA vehemently denied any involvement on the abduction of
said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in
(Exhibit "E") states that he is a resident of Brgy. Marungko, Angat,
Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to
him being his barriomate when he was still unmarried and he knew them
since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He
claims that he was being informed only about the incident lately and he
was not aware of any reason why the two (2) brothers were being
abducted by alleged members of the military and CAFGU. The only
reason he knows why they implicated him was because there are those
people who are angry with their family particularly victims of summary
execution (killing) done by their brother @ KA Bestre Rolando Manalo
who is an NPA leader. He claims further that it was their brother @ KA
BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of
the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in
(Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at
Biak na Bato, San Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being their barrio mate. He claims
further that they are active supporters of CPP/NPA and that their brother
Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the
accused, he claims that on 14 February 2006, he was in his residence at
Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the alleged abduction of the two
(2) brothers and learned only about the incident when rumors reached him
by his barrio mates. He claims that his implication is merely fabricated
because of his relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006
in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that he knew very well the brothers Raymond and
Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or
sympathizers of the CPP/NPA and whose elder brother Rolando Manalo
@ KA BESTRE is an NPA leader operating within the area. Being one of
the accused, he claims that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their place and he learned only
about the incident which is the abduction of Raymond and Reynaldo
Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims further that he is truly innocent
of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains
loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular
case, the proof of linking them to the alleged abduction and
disappearance of Raymond and Reynaldo Manalo that transpired on 14
February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to that
incident is considered doubtful, hence, no basis to indict them as charged
in this investigation.
Though there are previous grudges between each families (sic) in the past
to quote: the killing of the father of Randy and Rudy Mendoza by @ KA
BESTRE TN: Rolando Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction as a form of revenge. As it
was also stated in the testimony of other accused claiming that the
Manalos are active sympathizers/supporters of the CPP/NPA, this would
not also mean, however, that in the first place, they were in connivance
with the abductors. Being their neighbors and as members of CAFGU's,
 they ought to be vigilant in protecting their village from any intervention
by the leftist group, hence inside their village, they were fully aware of
the activities of Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged
charges of abduction committed by the above named respondents has not
been established in this investigation. Hence, it lacks merit to indict them
for any administrative punishment and/or criminal liability. It is therefore
concluded that they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela
Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed. 69
In this appeal under Rule 45, petitioners question the appellate court's assessment
of the foregoing evidence and assail the December 26, 2007 Decision on the
following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT
TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED,
AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND
MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE
COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS
OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO
INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14,
2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on
July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social
spectrum, as well as all the stakeholders in the justice system" 72 participated in
mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killing and enforced disappearances."73 It was an exercise
for the first time of the Court's expanded power to promulgate rules to protect our
people's constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. 74 As
the Amparo Rule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings."75 On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal of the State
to disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the
protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection"
in Spanish.77 In 1837, de Tocqueville's Democracy in America became available in
Mexico and stirred great interest. Its description of the practice of judicial review
in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio
Rejn, drafted a constitutional provision for his native state, Yucatan,79 which
granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national
constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the
exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks by the
Legislative and Executive powers of the federal or state governments,
limiting themselves to granting protection in the specific case in
litigation, making no general declaration concerning the statute or
regulation that motivated the violation.80
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders the official, or the official's
superiors, to cease the violation and to take the necessary measures to restore the
petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial
power characteristic of the civil law tradition which prevails in Mexico. It enables
courts to enforce the constitution by protecting individual rights in particular cases,
but prevents them from using this power to make law for the entire nation. 82
The writ of Amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each
country.83 It became, in the words of a justice of the Mexican Federal Supreme
Court, one piece of Mexico's self-attributed "task of conveying to the world's legal
heritage that institution which, as a shield of human dignity, her own painful
history conceived."84 What began as a protection against acts or omissions of
public authorities in violation of constitutional rights later evolved for several
purposes: (1) Amparo libertad for the protection of personal freedom, equivalent
to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) Amparo administrativo for
the judicial review of administrative actions; and (5) Amparo agrario for the
protection of peasants' rights derived from the agrarian reform process.85
In Latin American countries, except Cuba, the writ of Amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries adopted
an all-encompassing writ to protect the whole gamut of constitutional rights,
including socio-economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ of Amparo only
to some constitutional guarantees or fundamental rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the
writ of Amparo, several of the above Amparo protections are guaranteed by our
charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." The
Clause accords a similar general protection to human rights extended by the
Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in several provisions
of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102,90 these remedies may not be adequate
to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate
interim and permanent reliefs under the Amparo Rule, this hybrid writ of the
common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal
killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is
not an action to determine criminal guilt requiring proof beyond reasonable doubt,
or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive
proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in that
it breaks the expectation of impunity in the commission of these offenses; it is
curative in that it facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the long run, the
goal of both the preventive and curative roles is to deter the further commission of
extralegal killings and enforced disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction,
and Temporary Restraining Order" 92 to stop petitioners and/or their officers and
agents from depriving the respondents of their right to liberty and other basic
rights on August 23, 2007,93 prior to the promulgation of the Amparo Rule. They
also sought ancillary remedies including Protective Custody Orders, Appointment
of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135,
Section 6 of the Rules of Court. When the Amparo Rule came into effect on
October 24, 2007, they moved to have their petition treated as an Amparo petition
as it would be more effective and suitable to the circumstances of the Manalo
brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners'
first argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-serving affidavit/testimony of
herein respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore of
petitioners' cause of action, to determine whether the evidence presented is metal-
strong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of
action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof
required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The
parties shall establish their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court
of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were
continuously detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by respondent
Raymond Manalo in a clear and convincing manner. His account is dotted with
countless candid details of respondents' harrowing experience and tenacious will to
escape, captured through his different senses and etched in his memory. A few
examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa
istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel." 97 "May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga kadena." 99 "Tinanong ko sa isang
kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text
ang isang babae na nakatira sa malapit na lugar." 100
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently
identified by the petitioners (herein respondents) to be military personnel
and CAFGU auxiliaries. Raymond recalled that the six armed men who
barged into his house through the rear door were military men based on
their attire of fatigue pants and army boots, and the CAFGU auxiliaries,
namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the abduction.
Raymond was sure that three of the six military men were Ganata, who
headed the abducting team, Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as narrated by the
petitioners, validated their assertion of the participation of the elements of
the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the
suspicion that the petitioners were either members or sympathizers of the
NPA, considering that the abductors were looking for Ka Bestre, who
turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction
were, at best, merely superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only into the participation of
military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the
very least, he was aware of the petitioners' captivity at the hands of men
in uniform assigned to his command. In fact, he or any other officer
tendered no controversion to the firm claim of Raymond that he (Gen.
Palparan) met them in person in a safehouse in Bulacan and told them
what he wanted them and their parents to do or not to be doing. Gen.
Palparan's direct and personal role in the abduction might not have been
shown but his knowledge of the dire situation of the petitioners during
their long captivity at the hands of military personnel under his command
bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of
law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth
Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and
Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with
the abduction or the detention. Hilario's involvement could not, indeed,
be then established after Evangeline Francisco, who allegedly saw Hilario
drive the van in which the petitioners were boarded and ferried following
the abduction, did not testify. (See the decision of the habeas proceedings
at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-
300 van in which the petitioners were brought away from their houses on
February 14, 2006. Raymond also attested that Hilario participated in
subsequent incidents during the captivity of the petitioners, one of which
was when Hilario fetched them from Fort Magsaysay on board a Revo
and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan
where they were detained for at least a week in a house of strong
materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on board the Revo, to an
unfinished house inside the compound of Kapitan where they were kept
for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and
Efren also brought the petitioners one early morning to the house of the
petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that
occasion, Hilario warned the parents that they would not again see their
sons should they join any rallies to denounce human rights violations.
(Exhibit D, rollo, pp. 205-206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required
Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206)
There were other occasions when the petitioners saw that Hilario had a
direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and
forced disappearance of the petitioners was established. The participation
of other military personnel like Arman, Ganata, Cabalse and Caigas,
among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally
involved in the abduction. We also do, for, indeed, the evidence of their
participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's statements
were not corroborated by other independent and credible pieces of
evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit
of respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,103 also corroborate respondents' accounts of the
torture they endured while in detention. Respondent Raymond Manalo's familiarity
with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony
and confirmed by Lt. Col. Jimenez to be the "Division Training Unit," 104 firms up
respondents' story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commission's findings of fact were mostly based on
the consistent and credible statements, written and oral, made by Sister Ortiz
regarding her ordeal.106 These statements were supported by her recognition of
portions of the route they took when she was being driven out of the military
installation where she was detained.107 She was also examined by a medical doctor
whose findings showed that the 111 circular second degree burns on her back and
abrasions on her cheek coincided with her account of cigarette burning and torture
she suffered while in detention.108
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify
in the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of Amparo. There is no quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has now passed as they have escaped
from captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not "free in every sense
of the word"109 as their "movements continue to be restricted for fear that people
they have named in their Judicial Affidavits and testified against (in the case of
Raymond) are still at large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of the Philippines and are, thus,
in a position to threaten respondents' rights to life, liberty and
security."110 (emphasis supplied) Respondents claim that they are under threat of
being once again abducted, kept captive or even killed, which constitute a
direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point out that this
right is "often associated with liberty;" it is also seen as an "expansion of rights
based on the prohibition against torture and cruel and unusual punishment."
Conceding that there is no right to security expressly mentioned in Article III of
the 1987 Constitution, they submit that their rights "to be kept free from torture
and from incommunicado detention and solitary detention places112 fall under the
general coverage of the right to security of person under the writ of Amparo."
They submit that the Court ought to give an expansive recognition of the right to
security of person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, "The State values the dignity of every human
person and guarantees full respect for human rights." Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful
only if there is no undue restraint by the State on the exercise of that
liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty" 115 or being put under "monitoring and
surveillance."116
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge...
At the core of this guarantee is the immunity of one's person, including the
extensions of his/her person - houses, papers, and effects - against government
intrusion. Section 2 not only limits the state's power over a person's home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.117 The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and
property and unlawful invasion of the security of the home by officers of
the law acting under legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams v. New York, 192 U.S.
858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is
an essential condition to the dignity and happiness and to the peace
and security of every individual, whether it be of home or of persons
and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches and seizures must
be deemed absolute as nothing is closer to a man's soul than the
serenity of his privacy and the assurance of his personal security. Any
interference allowable can only be for the best causes and
reasons.119 (emphases supplied)
While the right to life under Article III, Section 1 120 guarantees essentially the right
to be alive121 - upon which the enjoyment of all other rights is preconditioned - the
right to security of person is a guarantee of the secure quality of this life, viz: "The
life to which each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather, it is a life lived
with the assurance that the government he established and consented to, will
protect the security of his person and property. The ideal of security in life and
property... pervades the whole history of man. It touches every aspect of man's
existence."122 In a broad sense, the right to security of person "emanates in a
person's legal and uninterrupted enjoyment of his life, his limbs, his body, his
health, and his reputation. It includes the right to exist, and the right to enjoyment
of life while existing, and it is invaded not only by a deprivation of life but also of
those things which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual." 123
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a
world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that "freedom
from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word
"security" itself means "freedom from fear." 125 Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of
person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure
as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded as
people react differently. The degree of fear can vary from one person to another
with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct
to say that the "right to security" is actually the "freedom from threat." Viewed
in this light, the "threatened with violation" Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, one's body cannot be searched or
invaded without a search warrant.128 Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury increases, the danger to
life itself escalates. Notably, in criminal law, physical injuries constitute a crime
against persons because they are an affront to the bodily integrity or security of a
person.129
Physical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit, reveal
or fabricate incriminating information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes the exercise of
free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means
which vitiate the free will shall be used against him (any person under
investigation for the commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of detention are
prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free
will - although not involving invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of "freedom from threat" as afore-
discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons
under investigation for the commission of an offense. Victims of enforced
disappearances who are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of person as a right against
torture was made by the European Court of Human Rights (ECHR) in the recent
case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained,
alleged that the state authorities had physically abused him in prison, thereby
violating his right to security of person. Article 5(1) of the European Convention
on Human Rights provides, viz: "Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law ..." (emphases supplied) Article 3,
on the other hand, provides that "(n)o one shall be subjected to torture or to
inhuman or degrading treatment or punishment." Although the application failed
on the facts as the alleged ill-treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to
take measures in order to ensure his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply
with the procedural obligation under Art.3 to conduct an effective
investigation into his allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has
also made a statement that the protection of the bodily integrity of women may
also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These
rights and freedoms include . . . the right to liberty and security of
person.132
Third, the right to security of person is a guarantee of protection of one's
rights by the government. In the context of the writ of Amparo, this right is built
into the guarantees of the right to life and liberty under Article III, Section 1 of
the 1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section 2.
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11 of
the 1987 Constitution.133 As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The
Inter-American Court of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,134viz:
(The duty to investigate) must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government.135
This third sense of the right to security of person as a guarantee of government
protection has been interpreted by the United Nations' Human Rights
Committee136 in not a few cases involving Article 9137 of the ICCPR. While the
right to security of person appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily
be a deprivation of liberty for the right to security of person to be invoked.
In Delgado Paez v. Colombia,138 a case involving death threats to a religion
teacher at a secondary school in Leticia, Colombia, whose social views differed
from those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed
focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the
right to life, the right to liberty and the right to security of the
person. These elements have been dealt with in separate clauses in
the Covenant. Although in the Covenant the only reference to the
right of security of person is to be found in article 9, there is no
evidence that it was intended to narrow the concept of the right to
security only to situations of formal deprivation of liberty. At the
same time, States parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case that, as a matter of
law, States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise
detained. States parties are under an obligation to take reasonable
and appropriate measures to protect them. An interpretation of
article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction
would render totally ineffective the guarantees of the
Covenant.139(emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political
activist and prisoner of conscience who continued to be intimidated, harassed, and
restricted in his movements following his release from detention. In a catena of
cases, the ruling of the Committee was of a similar import: Bahamonde v.
Equatorial Guinea,141 involving discrimination, intimidation and persecution of
opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform
in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner
and the harassment he (complainant) suffered because of his investigation of
the murder; and Chongwe v. Zambia,144 involving an assassination attempt on
the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right
to security" not only as prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection of the right to
liberty.145 The ECHR interpreted the "right to security of person" under Article
5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had
been arrested by state authorities and had not been seen since. The family's
requests for information and investigation regarding his whereabouts proved futile.
The claimant suggested that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an
arguable claim that a person has been taken into custody and has not
been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar,
we now determine whether there is a continuing violation of respondents' right to
security.
First, the violation of the right to security as freedom from threat to
respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymond's narration, he was tortured
and poured with gasoline after he was caught the first time he attempted to escape
from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before
he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be
killed has come to pass. It should be stressed that they are now free from captivity
not because they were released by virtue of a lawful order or voluntarily freed by
their abductors. It ought to be recalled that towards the end of their ordeal,
sometime in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still deciding whether
they should be executed. Respondent Raymond Manalo attested in his
affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3
o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. 148
The possibility of respondents being executed stared them in the eye while they
were in detention. With their escape, this continuing threat to their life is apparent,
moreso now that they have surfaced and implicated specific officers in the military
not only in their own abduction and torture, but also in those of other persons
known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel
Merino, among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and security.
The threat vitiates their free will as they are forced to limit their movements or
activities.149 Precisely because respondents are being shielded from the
perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life,
liberty and security. Nonetheless, the circumstances of respondents' abduction,
detention, torture and escape reasonably support a conclusion that there is an
apparent threat that they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security, and life, actionable
through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the government.
Apart from the failure of military elements to provide protection to respondents by
themselves perpetrating the abduction, detention, and torture, they also miserably
failed in conducting an effective investigation of respondents' abduction as
revealed by the testimony and investigation report of petitioners' own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the 7 th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated
members of the CAFGU and civilians whom he met in the investigation for the
first time. He was present at the investigation when his subordinate Lingad was
taking the sworn statements, but he did not propound a single question to ascertain
the veracity of their statements or their credibility. He did not call for other
witnesses to test the alibis given by the six implicated persons nor for the family or
neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in
the event the writ of Amparo is issued by a competent court against any members
of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of
witnesses and securing statements from them; determination of the cause, manner,
location and time of death or disappearance; identification and apprehension of the
person or persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also
submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he
immediately caused to be issued a directive to the units of the AFP for the purpose
of establishing the circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results of the
investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October
31, 2007, respondents have not been furnished the results of the investigation
which they now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents' right to security as a guarantee of
protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is
violated by the apparent threat to their life, liberty and security of person. Their
right to security as a guarantee of protection by the government is likewise
violated by the ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those already in
file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search warrant.
Thus, they claim that the requisites for the issuance of a search warrant must be
complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations
made by respondent Raymond Manalo in his unverified declaration and affidavit,
the documents respondents seek to be produced are only mentioned generally by
name, with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand
of the people such as respondents.
Instead, the Amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure
which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the
court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters,
photographs, objects or tangible things, not privileged, which
 constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent
judge, under authority of Rule 27, issued a subpoena duces tecum for the
production and inspection of among others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on
the ground that it violated the search and seizure clause. The Court struck down
the argument and held that the subpoena pertained to a civil procedure that "cannot
be identified or confused with unreasonable searches prohibited by the
Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to
provide results of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of the
persons in whose favor the Writ of Amparo has been sought for as soon as the
same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure
of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, as well as the submission of a list of medical personnel, is
irrelevant, improper, immaterial, and unnecessary in the resolution of the petition
for a writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and
even unwittingly and unnecessarily expose them to threat of personal injury or
even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in
ensuring the safety of respondents by avoiding their areas of territorial jurisdiction.
Such disclosure would also help ensure that these military officers can be served
with notices and court processes in relation to any investigation and action for
violation of the respondents' rights. The list of medical personnel is also relevant in
securing information to create the medical history of respondents and make
appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these
rights are snuffed out from victims of extralegal killings and enforced
disappearances. The writ of Amparo is a tool that gives voice to preys of silent
guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision
of the Court of Appeals dated December 26, 2007 is affirmed.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 70748 October 21, 1985
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS D.
RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal
Assistance Group [FLAG] and Movement of Attorneys For Brotherhood,
Integrity and Nationalism, Inc., [MABINI], petitioners,
vs.
HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN.
FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of the Philippines;
BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for
Region XI, Camp Catitipan, Davao City, respondents.
Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac,
Fulgencio S. Factoran, Francisco I. Chavez , Lorenzo M. Taada, Wigberto
Taada and Martiniano Vivo for petitioners.
The Solicitor General for respondents.
MELENCIO-HERRERA, J.:
This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines
(IBP), the Free Legal Assistance Group (FLAG); and the Movement of Attorneys
for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys
Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr.
The facts follow:
On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by
elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission
Order allegedly issued by the Ministry of National Defense. On that same day,
fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the
visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the
basis of an unsigned Mission Order. On May 13, 1985, the military sent word to
the IBP Davao Chapter that Attorney Marcos Risonar would likewise be arrested.
The latter went to Camp Catitipan to verify his arrest papers and was detained on
the basis of a Mission Order signed by General Echavarria, Regional Unified
Commander.
This petition for habeas corpus was then filed by and on behalf of the three
arrested lawyers hereinafter referred to as the detained attorneys on the ground that
their arrests were illegal and violative of the Constitution, since arrests cannot be
made on the basis of Mission Orders. and that there appears to be a military
campaign to harass lawyers involved in national security cases.
On May 16, 1985, the Court issued the Writ, required a Return, and set the petition
for hearing on May 23, 1985.
In their Return, respondents contended that the detained attorneys were arrested on
the basis of a PDA issued by the President on January 25, 1985; that the Writ
of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A;
and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, 1 Courts
lack the authority to inquire into the cause and validity of detention of persons held
pursuant to the suspension. Respondents further expounded on the state of
rebellion in Davao City on the basis of seized subversive documents, implying that
the detained attorneys played active roles in organizing mass actions of the
Communist Party of the Philippines and the National Democratic Front.
Respondents then prayed for the denial of the petition.
During the hearing on May 23, 1985, the detained attorneys narrated to the Court
the circumstances of their arrest and detention. Counsel for the respondents, on the
other hand, presented evidence of subversive activities in Davao, but due to lack of
evidence linking the detained attorneys with the alleged subversive activities, the
Court, on the same day resolved to order the temporary release of the detained
attorneys on the recognizance of the principal counsel of petitioner's, namely,
retired Chief Justice Roberto Concepcion and retired Associate Justice J.B.L.
Reyes. The Court further resolved to give petitioners ten days within which to file
a traverse to the Return of the Writ and the respondents ten days to file a Reply
thereto.
The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion
stating that the detained attorneys had not yet been released and praying that they
be released to the custody of the principal counsel of petioners at the Supreme
Court.
On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this
Court's Order of Release reiterating that the suspension of the Writ of Habeas
Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and
attached thereto classified documents consisting of the Report of respondent Brig.
Gen. Tan-Gatue stating that the detained attorneys "were arrested not on the basis
of their 'lawyering' but for specific acts of rebellion and economic sabotage as well
as for their leadership in the CPP" ... "even to the extent of attending CPP and
NPA rites and using their profession as lawyers as cover-up for their activities in
furtherance of CPP goals and objectives;" and that the detained attorneys were
involved in the Welgang Bayan in Davao City, a mass action "with demands for
the armed overthrow of the government." Sworn statements of several persons also
implicated the detained attorneys in alleged subversive activities. Respondents
added that, while there is a Court Order directing release, they, too, are under
orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered
released by the President or by his duly authorized representative, and that the
PDA, when issued, constitutes authority to preventively detain them for a period
not exceeding one year.
On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that
an Information for Rebellion was filed on May 27, 1985 against the detained
attorneys before the Regional Trial Court of Davao City, Branch X, docketed as
Criminal Case No. 12,349; that a Warrant of Arrest had been issued against them;
and praying that this Petition be dismissed for having been rendered moot and
academic.
On May 30, 1985, petitioners filed an Opposition to respondents' Urgent
Motion/Manifestation contending that since the detained attorneys were not given
the benefit of preliminary investigation, they were denied their constitutional right
to due process; consequently, the Information for Rebellion filed against them is
void. Respondents, on the other hand, filed on the same day a Comment to
petitioners' Manifestation and Motion reiterating their prayer for the dismissal of
the petition on the ground of mootness by virtue of the proceedings before the
Regional Trial Court of Davao.
On June 3, 1985, petitioners filed a consolidated Comment and Traverse
contending that the "Welgang Bayans" were in legitimate exercise of the
constitutional right of expression and assembly to petition the government for
redress of grievances; that the detained attorneys' participation was limited to
serving in the legal panel and the negotiating panels; that Proclamation No. 2045 is
unconstitutional because there exists no factual or legal basis for the suspension of
the Writ of Habeas Corpus as provided for in the Constitution; that the evidence
presented by respondents against the detained attorneys are of a doubtful and
flimsy nature; and that the PDA is unconstitutional because it violates Section 3,
Article IV, of the Constitution prohibiting unreasonable searches and seizures.
On July 1, 1985, petitioners filed a Manifestation and Motion praying that the
Court immediately resolve the issues raised as the case affects not only the
detained attorneys but the entire legal profession and the administration of justice
as well.
Finally, after two extensions granted by the Court, on July 8, 1985, respondents
filed a Consolidated Reply, reiterating first, the validity of Proclamation No. 2045,
as amended by Proclamation No. 2045-A and of the PDA issued against
petitioners as an incident to the suspension of the privilege of the Writ of habeas
corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et al.; 2 and
thirdly, its prayer for the dismissal of the petition on the ground of mootness by
virtue of the filing of an Information for Rebellion against the detained attorneys
before the Regional Trial Court of Davao City .
As contended by respondents, the petition herein has been rendered moot and
academic by virtue of the filing of an Information against them for Rebellion, a
capital offense, before the Regional Trial Court of Davao City and the issuance of
a Warrant of Arrest against them. 3 The function of the special proceeding
of habeas corpus is to inquire into the legality of one's detention. Now that the
detained attorneys' incarceration is by virtue of a judicial order in relation to
criminal cases subsequently filed against them before the Regional Trial Couravao
City, the remedy of habeas corpus no longer lies. The Writ had served its
purpose.4
SEC. 4. When writ not allowed or discharge authorized.-If it
appears the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge or
by virtue of a judgment, or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render
the judgment, or make the order, the writ shall not be allowed; or
if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in
the process, judgment or order. Nor shall anything in this rule be
held to authorize to discharge of a person charged with or
convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment. (Rule 102)
If the detained attorneys question their detention because of improper arrest, or
that no preliminary investigatin has been conducted, the remedy is not a petition
for a Writ of Habeas Corpus but a Motion before the trial court to quash the
Warrant of Arrest, and /or the Information on grounds provided by the Rules or to
ask for an investigation / reinvestigation of the case. 5 Habeas corpus would not lie
after the Warrant of commitment was issued by the Court on the basis of the
Information filed against the accused. 6 So is it explicitly provided for by Section.
14, Rule of 102 of the Rules of Court, reading:
SEC. 14. When person lawfully imprisoned recommitted and
when let to bail.- If it appears that the prisoner was lawfully
committed, and is plainly and specifically charged in the warrant
of commitment with an offense punishable by death, he shall not
be released, discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense not so
punishable, he may be recommitted to imprisonment or admitted
to bail in the discretion of the court or judge. . . .
But petitioners submit that because of the absence of a preliminary investigation,
the Information for Rebellion filed against the detained attorneys is void and the
Court below could not have acquired jurisdiction over them, and consequently,
they are entitled to release.
On the other hand, respondents contend that a preliminary investigation was
unnecessary since the detained attorneys were lawfully arrested without a warrant.
Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense
cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted, except as provided for in Section 7 of
Rule 112. 7 The Information filed by the City Fiscal before the Regional Trial
Court of the City of Davao fell within the exception. Thus, the Verification reads:
VERIFICATION
I HEREBY CERTIFY that I am filing this Information in
pursuance with Rule 112, Section 7 of the 1985 Rules on
criminal Procedure, wherein after examining the affidavits of the
government witnesses and other documents attached to the
records, I found sufficient ground to hold respondents for trial.
(SGD.) EMMANUEL E. GALICIA
City Fiscal
Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to
provides:
SEC. 7. When accused lawfully arrested without warrant.- When
a person is lawfully arrested without a warrant for an offense
 cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without preliminary investigation having been first
conducted on the basis of the affidavit of the offended party or
arrested officer or person.
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his choice.
Notwithstanding such waiver, he may apply for bail as provided
in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in
this Rule.
Section 5, Rule 113 of the same Rules enumerates the instances when an arrest
without warrant is lawful.
SEC. 5. Arrest without warrant; when lawful.A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs [al and [b] hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7. (Rule 113)
Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante
delicto or immediately thereafter, while paragraph (c) refers to escaping prisoners.
As to whether the detained attorneys fall under either of the first two instances
enumerated is a question of fact, which will need the presentation of evidence and
is more properly within the province of the trial Court.
The question of absence of a proper preliminary investigation is also better
inquired into by the Court below. When so raised, this Court, speaking through
Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to
dismiss the information but hold the case in abeyance and conduct its own
investigation or require the fiscal to hold a reinvestigation. 8 As stressed in People
vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence
of such investigation did not impair the validity of the Information or otherwise
render it defective. Much less did it affect the jurisdiction of the Court of First
Instance". 9 The right to a preliminary investigation, being waivable, does not
argue against the validity of the proceedings, the most that could have been done
being to remand the case in order that such investigation could be conducted. 10
... The proper forum before which absence of preliminary
investigation should be ventilated is the Court of First Instance,
not this Court. Reason is not wanting for this view. Absence of
preliminary investigation does not go to the jurisdiction of the
court but merely to the regularity of the proceedings. It could
even be waived. Indeed, it is frequently waived. These are
matters to be inquired into by the trial court, not an appellate
Court. 11
The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the
release of two of the accused, is not on all fours with the case at bar as, in that
case, the accused were charged only with Illegal Possession of Subversive
documents under Presidential Decree No. 33, which is punishable by prision
correccional in its minimum period, and the trial Court had granted bail; whereas
in this case, petitioners are charged with the capital offense of Rebellion, and the
trial Court has not allowed bail.
WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having
become moot and academic. Petitioners are now detained by virtue of a Warrant of
Arrest issued by the Regional Trial Court of Davao City in relation to the criminal
case for Rebellion filed against them before said Court.
SO ORDERED.
Makasiar, C.J., Plana, Escolin Relova, Gutierrez, Jr., De la Fuente Cuevas and
Alampay, JJ., concur.
Aquino, J., concur in the result
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 118644 July 7, 1995
DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of
Investigation (NBI), NATIONAL BUREAU OF INVESTIGATION SPECIAL
OPERATIONS GROUP (SOG), SPECIAL INVESTIGATORS III FLOR L.
RESURRECCION and ANTONIO M. ERUM, JR., and THE PEOPLE OF
THE PHILIPPINES, petitioners,
vs.
COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of
LAWRENCE A. LARKINS, respondents.
DAVIDE, JR., J.:
The high prerogative writ of habeas corpus, whose origin is lost in antiquity,1 was
devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint and as the best and only sufficient defense of personal
freedom.2 More specifically, its vital purposes are to obtain immediate relief from
illegal confinement, to liberate those who may be imprisoned without sufficient
cause, and to deliver them from unlawful custody. It is then essentially a writ of
inquiry and is granted to test the right under which a person is detained. 3
Under our Constitution, the privilege of the writ of habeas corpus cannot be
suspended except in cases of invasion or rebellion when the public safety requires
it.4 Pursuant to Section 1, Rule 102 of the Rules of Court, it extends, except as
otherwise provided by law, to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto. It is not available, however,
under the instances enumerated in Section 4 of the said Rule which reads:
Sec. 4. When writ not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything
in this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.
In this petition for review, the petitioners want us to set aside and reverse the
decision of 1 February 1995 of the Court of Appeals in CA-G.R. SP No. 36273,5 a
petition for habeas corpus and certiorari with a prayer for a temporary restraining
order, ordering the herein petitioners to immediately release Lawrence A. Larkins
from their custody and declaring moot the alternative relief of certiorari.
The antecedent facts of the case as culled from the challenged decision and the
pleadings of the parties are neither complicated nor disputed.
On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina
of Branch 162 of the Regional Trial Court (RTC) of Pasig, Metro Manila, against
accused Lawrence Larkins in Criminal Cases Nos. 101189-92 for violations of
B.P. Blg. 22.
On 20 November 1994, a certain Desiree Alinea executed and filed before the
National Bureau of Investigation (NBI) a complaint-affidavit accusing Larkins of
the crime of rape allegedly committed against her on 19 November 1994 at 2:00
a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal.6
Acting on the basis of the complaint of Alinea, petitioners Special Investigators
Flor L. Resurreccion and Antonio M. Erum, Jr. proceeded to the office of Larkins
in Makati, Metro Manila, on 21 November 1994 and arrested the latter, who was
thereupon positively identified by Alinea as her rapist. 7 Larkins was then detained
at the Detention Cell of the NBI, Taft Avenue, Manila.
On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases
Nos. 101189-92. Judge Padolina forthwith issued an order recalling and setting
aside the warrant of arrest issued on 16 September 1993 and directing the Jail
Warden of the NBI Detention Cell to release Larkins from confinement "unless
otherwise detained for some other cause."
Special Investigators Resurreccion and Erum refused to release Larkins because he
was still detained for another cause, specifically for the crime of rape for which he
would be held for inquest.
On 23 November 1994, a complaint against Larkins for rape was executed by
Alinea.8 It contains a certification by Assistant Provincial Prosecutor Ma. Paz
Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules on
Criminal Procedure, as amended, the accused not having opted to avail of his right
to preliminary investigation and not having executed a waiver pursuant to Article
125 of the RPC. . . ." The complaint was filed with the RTC of Antipolo on 2
December 1994, docketed therein as Criminal Case No. 94-11794, and assigned to
Branch 71 of the court, presided by Judge Felix S. Caballes.
On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an
Urgent Motion for Bail9 wherein he alleged, inter alia, that the evidence of guilt
against him for rape is not strong, as he had no carnal knowledge of the
complainant and the medical report indicates that her hymen was neither lacerated
nor ruptured; that he is entitled as a matter of right to bail; and that he has no
intention of going out of the country or hiding away from the law.
On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te,
filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the Dismissal
of the Complaint and for Immediate Release,10 principally based on the alleged
illegality of his warrantless arrest. This motion met vigorous opposition from the
private complainant.11
In the order of 5 January 1995,12 the trial court denied the aforesaid motions, thus:
After a careful appreciation of the arguments of the prosecution
and the defense, the Court finds no legal or valid grounds to
dismiss the complaint or release the accused, or to grant him
bail. The filing of this case against the accused, which is [a] very
serious offense, justifies the grant of the motion of the
prosecution for the issuance of a hold departure order.
WHEREFORE, the motions of the accused are hereby denied for
lack of merit, and as prayed for by the prosecution the Bureau of
Immigration and Deportation is hereby directed to include the
name of the accused, Lawrence A. Larkins, in its hold order
departure list until further order from this Court.
Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed
before the Court of Appeals a petition for habeas corpus with certiorari.
Impleaded as respondents were the herein petitioners and Judge Felix S. Caballes.
Subsequently, the Court of Appeals issued a resolution13 ordering the respondents
therein to appear and produce Lawrence A. Larkins before the court on 31 January
1995 at 10:30 a.m. and to show cause why Larkins' liberty is being restrained.
On the said date, Special Investigators Resurreccion and Erum appeared and
produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as their
counsel. 14 The Office of the Solicitor General representing the People of the
Philippines made no appearance.15 Neither did Judge Caballes, for he had not
received a copy of the resolution. On the other hand, the petitioner therein,
Felicitas S. Cuyag, appeared with her counsel, who manifested that should the
court order the release of Larkins the alternative prayer for certiorari would be
deemed abandoned. 16
After hearing the arguments of the parties, the Court of Appeals rendered the
challenged decision, holding that:
From the arguments presented by the parties, we resolve to order
the immediate release of Larkins from his present confinement
on the ground that the complaint presented to the NBI by
complainant Desiree Alinea on the basis of which Larkins was
detained without a warrant of arrest for rape did not meet the
legal requirements provided for in Rule 113 of the Rules of
Court.
Furthermore, on the day the detention of Larkins
commenced, i.e., immediately after the NBI was served with the
Order of the Pasig RTC for his release on bail in connection with
the BP 22 cases, no other criminal complaint or information had
been filed or pending in any court. It was only sometime
between November 25, 1994 (when filing of the complaint was
approved by the Rizal Provincial Prosecutor) and November 29,
1994 (the date appearing on the Urgent Motion for Bail filed by
Larkins's former counsel, said Atty. Ulep) that the complaint for
rape was filed with the Antipolo RTC.
The petitioners insist that the respondent court erred in granting the petition
for habeas corpus because Larkins had already been charged with the crime of
rape and the trial court had denied his application for bail. They further claim that
the warrantless arrest in this case is valid for it was made under Section 5(b), Rule
113 of the Rules of Court.
On the other hand, the private respondent contends that habeas corpus is rendered
unavailing not by the mere filing of an information, but by the issuance of a
warrant of arrest or warrant of commitment, which are the only two processes
recognized by law to justify deprivation of liberty, and the order of Judge Caballes
of 5 January 1995 denying the petition for bail does not qualify as such. She
asserts that the petitioners have miscomprehended Paredes
vs. Sandiganbayan17 because that case did not rule that the writ is no longer
available after an information (or criminal complaint for rape as in this case) is
filed against the person detained; what it stated is that the writ of habeas
corpus will not issue when the person alleged to be restrained of his liberty is in
the custody of an officer under a process issued by the court which has jurisdiction
to do so. She submits that the controlling doctrine is that enunciated in Ilagan
vs. Ponce Enrile,18 adverted to in Sanchez vs. Demetriou,19 that "[t]he filing of
charges, and the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny him the
right to be released because of such defect."
We find for the petitioners.
But, before we take up the substantive merits of this petition, we shall first delve
into the propriety of the petition for habeas corpus and certiorari filed by private
respondent Cuyag with the Court of Appeals.
Concededly, the private respondent has the personality to institute on behalf of her
common-law spouse, Lawrence Larkins, the habeas corpus aspect of the petition,
as she falls within the purview of the term "some person" under Section 3, Rule
102 of the Rules of Court, which means any person who has a legally justified
interest in the freedom of the person whose liberty is restrained or who shows
some authorization to make the application.20 She is not, however, the real party in
interest in the certiorari aspect of the petition. Only Larkins could institute a
petition for certiorari to set aside the order denying his motions for bail and for the
dismissal of the complaint against him.
It does not, however, follow that if certiorari is available to Larkins, an application
for a writ of habeas corpus will absolutely be barred. While ordinarily, the writ
of habeas corpus will not be granted when there is an adequate remedy by writ of
error or appeal or by writ of certiorari, it may, nevertheless, be available in
exceptional cases, for the writ should not be considered subservient to procedural
limitations which glorify form over substance.21 It must be kept in mind that
although the question most often considered in both habeas
corpus and certiorari proceedings is whether an inferior court has exceeded its
jurisdiction, the former involves a collateral attack on the judgment and "reaches
the body but not the record," while the latter assails directly the judgment and
"reaches the record but not the body." 22
And now on the merits of the petition.
The Court of Appeals granted the writ of habeas corpus because it found that the
warrantless arrest of Larkins for the crime of rape "did not meet the legal
requirements provided for in Rule 113 of the Rules of Court." It could have in
mind Section 5 thereof on lawful warrantless arrest.
Even if the arrest of a person is illegal, supervening events may bar his release or
discharge from custody. What is to be inquired into is the legality of his detention
as of, at the earliest, the filing of the application for a writ of habeas corpus, for
even if the detention is at its inception illegal, it may, by reason of some
supervening events, such as the instances mentioned in Section 4 of Rule 102, be
no longer illegal at the time of the filing of the application. Among such
supervening events is the issuance of a judicial process preventing the discharge of
the detained person. Thus, in Sayo vs. Chief of Police of Manila,23 this Court held:
[W]e hold that petitioners are being illegally restrained of their
liberty, and their release is hereby ordered unless they are now
detained by virtue of a process issued by a competent court of
justice. (emphasis supplied)
Another is the filing of a complaint or information for the offense for which the
accused is detained, as in the instant case. By then, the restraint of liberty is
already by virtue of the complaint or information and, therefore, the writ of habeas
corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor
shall anything in this rule be held to authorize the discharge of a person
charged with . . . an offense in the Philippines."
Thus, in Matsura vs. Director of Prisons,24 where petitioners Macario Herce and
Celso Almadovar claimed to have been illegally detained for more than one year
without any complaint or information filed against them, this Court denied the
petition for a writ of habeas corpus, for at the time they filed the petition they had
already been charged with the crime of treason and confined by reason
thereof. Harvey vs. Defensor-Santiago25 reiterates Matsura.
In Cruz vs. Montoya,26 this Court dismissed the petition for habeas corpus for
having become academic because the information for estafa against the party
whose liberty was allegedly illegally restrained had already been filed and a
warrant for his arrest had been issued, and whatever illegality might have
originally infected his detention had been cured.
In Umil vs. Ramos27 this Court, applying the last sentence of Section 4 of Rule
102, held that the writ of habeas corpus should not be allowed after the party
sought to be released had been charged before any court. Thus:
It is to be noted that, in all the petitions here considered, criminal
charges have been filed in the proper courts against the
petitioners. The rule is, that if a person alleged to be restrained
of his liberty is in the custody of an officer under process issued
by a court or judge, and that the court or judge had jurisdiction
to issue the process or make the order, or if such person is
charged before any court, the writ of habeas corpus will not be
allowed. Section 4, Rule 102, Rules of Court, as amended is
quite explicit in providing that:
Sec. 4. . . . Nor shall anything in this rule be held to authorize
the discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering from
imprisonment under lawful judgment.28 (emphasis supplied)
It may also be said that by filing his motion for bail, Larkins admitted that he was
under the custody of the court and voluntarily submitted his person to its
jurisdiction. In De Asis vs. Romero,29 this Court stated:
De Asis could have, right after his arrest, objected to the
regularity of the issuance of the warrant of arrest in question.
Instead he not only filed a petition for bail with the lower
court, thereby accepting the court's jurisdiction over his
person, but he also pleaded, on arraignment, to the information
filed against him. (emphasis supplied)
The filing of a petition or motion for bail in cases where no bail is recommended
has the same legal import and effect as the posting of bail in cases where bail is
recommended. It is settled that the giving or posting of bail by the accused is
tantamount to submission of his person to the jurisdiction of the court. In the case
of Carrington vs. Peterson,30 this Court declared:
When a defendant in a criminal case is brought before a
competent court by virtue of a warrant of arrest or otherwise, in
order to avoid the submission of his body to the jurisdiction of
the court he must raise the question of the court's jurisdiction
over his person at the very earliest opportunity. If he gives bail,
demurs to the complaint or files any dilatory plea or pleads to
the merits, he thereby gives the court jurisdiction over his
person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)
In United States vs. Grant,31 this Court held:
Conceding again that the warrant issued in this case was void for
the reason that no probable cause was found by the court before
issuing it, the defendant waived all his rights to object to the
same by appearing and giving bond.
While it may be true that on 6 December 1994, or four days after the filing of the
Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent Omnibus
Motion for Dismissal of the Complaint and for Immediate Release based on the
alleged illegality of his warrantless arrest, the said motion was a mere afterthought
which came too late in the day. By then, the trial court had firmly acquired
jurisdiction over his person.
Moreover, the trial court's order of 5 January 1995 denying the urgent motion for
bail was an unequivocal assertion of its authority to keep in custody the person of
Larkins. This order comes under the purview of the word order under the first
sentence of Section 4 of Rule 102 reading: "If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer . . .
by virtue of [an] order of a court of record, and that the court or judge had
jurisdiction to . . . make the order, the writ shall not be allowed. . . ."
The foregoing renders untenable the private respondent's claim that it is the rule
in Ilagan vs. Enrile32 which must govern, that the writ may not be allowed only
where the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by the court or judge, and that there are only two
recognized processeswhich justify deprivation of liberty, viz., (1) commitment
order and (2) warrant of arrest. The contention is not only a deliberate misreading
of Section 4 of Rule 102 limiting its application to the first part of the first
sentence and disregarding the rest, but is also an undue and unwarranted restriction
of the term process. A commitment order and a warrant of arrest are but species of
judicial process.
In Malaloan vs. Court of Appeals,33 this Court stated:
 Invariably a judicial process is defined as a writ, warrant,
subpoena, or other formal writing issued by authority of law;
also, the means of accomplishing an end, including judicial
proceedings, or all writs, warrants, summonses and orders of
courts of justice or judicial officers. It is likewise held to include
a writ, summons or order issued in a judicial proceeding to
acquire jurisdiction of a person or his property, to expedite the
cause or enforce the judgment, or a writ, warrant, mandate or
other process issuing from a court of justice.
In Macondray & Co., Inc. vs. Bernabe,34 this Court quoted Corpus Juris' definition
of the term "process," to wit:
As a legal term, process is a generic word of very
comprehensive signification and many meanings. In its broadest
sense, it is equivalent to, or synonymous with "proceedings" or
procedure and embraces all the steps and proceedings in a cause
from its commencement to its conclusion. Sometimes the term is
also broadly defined as the means whereby a court compels a
compliance with its demands. (50 C.J. 441)
We thus rule that the order of 5 January 1995 of the trial court also qualifies as
a process within the meaning of Section 4 of Rule 102.
Hence, even granting that Larkins was illegally arrested, still the petition for a writ
of habeas corpus will not prosper because his detention has become legal by virtue
of the filing before the trial court of the complaint against him and by the issuance
of the 5 January 1995 order.
Even as we thus decide in favor of the petitioners, we are, nevertheless, disturbed
by certain incidents relative to the warrantless arrest of Larkins. Firstly, assuming
that it was lawful, the facts before us disclose that the arresting officers failed to
strictly comply with (1) the last paragraph of Section 5, Rule 113 of the Rules of
Court requiring that the person lawfully arrested without a warrant shall forthwith
be delivered to the nearest police station or jail and shall be proceeded against in
accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal
Code, as amended, providing that he be delivered to the proper judicial authorities
within thirty-six hours, the crime with which Larkins was charged being
punishable by an afflictive penalty. Although the arrest was made in Makati where
there is a police station and a municipal (now city) jail, Larkins was brought to the
NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the
offended party was executed on 23 November 1994, it was not until 2 December
1994 that the said complaint was actually filed in court.
Unless satisfactorily explained, the non-compliance by the arresting officers with
the said provisions merits nothing but disapproval from the Court. In the
performance of their duty and in their commendable pursuit to stamp out crimes
and bring criminals to the bar of justice, law enforcement authorities should make
no shortcuts, but must comply with all procedures to safeguard the constitutional
and statutory rights of accused persons. The rule of law must always be upheld.
What this Court said in Beltran vs. Garcia35 needs to be repeated:
It certainly does not speak well of officialdom, whether civilian
or military, if a person deprived of his liberty had to go to court
before his rights are respected. The good name of the
administration is jeopardized, without any fault on its part, by
such inefficiency or inattention to duty. Every precaution should
be taken against its repetition. Otherwise, the parties responsible
for this state of affairs would justly lay themselves open to the
accusation that the greatest danger to constitutional rights comes
from public officials, men of zeal, concededly well-meaning, but
without sufficient understanding of the implication of the rule of
law.
We also note that the trial court did not conduct a hearing of the urgent motion for
bail, as required under Section 5, Rule 114 of the Rules of Court. The grant or
denial of bail must be based upon the court's determination as to whether or not the
evidence of guilt is strong. This discretion may only be exercised after evidence is
submitted at the hearing conducted for that
purpose.36 The court's order granting or refusing bail must contain a summary of
the evidence for the prosecution followed by its conclusion whether or not the
evidence of guilt is strong; otherwise, the order would be defective and
voidable. 37 In fact, even if the prosecutor refuses to adduce evidence in opposition
to the application to grant and fix bail, the court may ask the prosecution such
questions as would ascertain the strength of the State's evidence or judge the
adequacy of the amount of bail.38 It was thus incumbent upon the trial court to
receive the evidence for the prosecution on the urgent motion for bail. For this
procedural shortcoming, Larkins should also be partly blamed. He did not press for
a hearing after the scheduled hearing on 5 December 1994 was cancelled because,
as he claimed, the presiding Judge was out of the country. 39
WHEREFORE, the instant petition is GRANTED, and the decision of the Court of
Appeals of 1 February 1995 in CA-G.R. SP No. 36273 is hereby SET ASIDE and
ANNULLED.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63345 January 30, 1986
EFREN C. MONCUPA, petitioner,
vs.
JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR,
FERNANDO GOROSPE, AND JOSE CASTRO, respondents.
Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,
GUTIERREZ, JR., J.:
As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778,
790), this Court ruled:
A prime specification of al application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. ...
This latitudinarian scope of the writ of habeas-corpus has, in law, remained
undiminished up to the present. The respondents' contention that the petition has
become moot and academic must necessarily be denied. Efren C. Moncupa may
have been released from his detention cell. The restraints attached to his temporary
release, however, preclude freedom of action and under the Villavicencio v.
Lukban rule warrant this Court's inquiry into the nature of his involuntary restraint
and our relieving him of such restraints as may be illegal.
Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982
at about 10:50 P.M., at the corner of D. Street and Quezon Avenue, Quezon City.
Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay, Quezon City
where he was detained. On April 23, 1982, on the allegation that he was a National
Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO)
was issued against him and eight (8) other persons.
After two separate investigations, conducted first, by Lieutenant Colonel Gerardo
Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by
Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the
petitioner was not a member of any subversive organization. Both investigators
recommended the prosecution of the petitioner only for illegal possession of
firearms and illegal possession of subversive documents under Presidential Decree
No. 33.
Consequently, two separate informations were filed against the petitioner, one, for
illegal possession of firearms before the Court of First Instance of Rizal and the
other for violation of P.D. 33 before the City Court of Quezon City. Against the
other accused, however, the cases filed were for violation of P.D. 885 as amended.
Significantly, the petitioner was excluded from the charge under the Revised Anti-
Subversion Law. During the pendency of this petition, it is significant that his
arraignment and further proceedings have not been pursued. And yet, the
petitioner's motions for bail were denied by the lower court.
Hence, the petitioner filed the instant petition.
The respondents, in their return of the writ justified the validity of petitioner's
detention on the ground that the privilege of the writ had been suspended as to the
petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss
stating that on May 11, 1983, the petitioner was temporarily released from
detention on orders of the Minister temporary of National Defense with the
approval of the President. The respondents stated. "Since the petitioner is free and
no longer under the custody of the respondents, the present petition for habeas
corpus may be deemed moot and academic as in similar cases.
The issue to be resolved is whether or not the instant petition has become moot and
academic in view of the petitioner's temporary release.
It is to be noted that attached to the petitioner's temporary release are restrictions
imposed on him. These are:
1) His freedom of movement is curtailed by the condition that petitioner gets the
approval of respondents for any travel outside Metro Manila.
2) His liberty of abode is restricted because prior approval of respondents is also
required in case petitioner wants to change his place of residence.
3) His freedom of speech is muffled by the prohibition that he should not
"participate in any interview conducted by any local or foreign mass media
representatives nor give any press release or information that is inimical to the
interest of national security."
4) He is required to report regularly to respondents or their representatives.
The petitioner argues that although admittedly his temporary release is an
improvement upon his actual detention, the restrictions imposed by the
respondents constitute an involuntary and illegal restraint on his freedom.
The petitioner stresses that his temporary release did not render the instant
petitioner moot and academic but that "it merely shifted the inquiry from the
legality of his actual detention to the legality of the conditions imposed by the
respondents."
We agree with the petitioner.
The reservation of the military in the form of restrictions attached to the temporary
release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such
restrictions limit the freedom of movement of the petitioner. It is not physical
restraint alone which is inquired into by the writ of habeas corpus.
In Villavicencio v. Lukban, the women who had been illegally seized and
transported against their will to Davao were no longer under any official restraint.
Unlike petitioner Moncupa, they were free to change their domicile without asking
for official permission. Indeed, some of them managed to return to Manila. Yet,
the Court condemned the involuntary restraints caused by the official action, fined
the Mayor of Manila and expressed the hope that its "decision may serve to
bulwark the fortifications of an orderly government of laws and to protect
individual liberty from Megal encroachment."
In the light of the above ruling, the present petition for habeas corpus has not
become moot and academic. Other precedents for such a conclusion are not
wanting.
The decision in Caunca v. Salazar (82 Phil. 851) states:
An employment agency, regardless of the amount it may
advance to a prospective employee or maid, has absolutely no
power to curtail her freedom of movement. The fact that no
physical force has been exerted to keep her in the house of the
respondent does not make less real the deprivation of her
personal freedom of movement, freedom to transfer from one
place to another, from to choose one's residence. Freedom may
be lost due to external moral compulsion, to founded or
groundless fear, to erroneous belief in the existence of the will.
If the actual effect of such psychological spell is to place a
person at the mercy of another, the victim is entitled to the
protection of courts of justice as much as the individual who is
illigally deprived of liberty by deprived or physical coercion.
In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:
Although the release in the custody of the Deputy Minister did
not signify that petitioners could once again enjoy their full
freedom, the application could have been dismissed, as it could
be withdrawn by the parties themselves. That is a purely
voluntary act. When the hearing was held on September 7, 1978,
it turned out that counsel for petitioner Bonifacio V. Tupaz could
have academic in a hasty manner when he set forth the above
allegations in his manifestation of August 30, 1978, for Attorney
Jose C. Espinas, who appeared for petitioners, while conceding
that there was such a release from confinement, also alleged that
it was conditioned on their restricting their activities as labor
union leaders to the premises of the Trade Unions of the
Philippines and ABSOLUTE Services, presumably in Macaraig
as well as the Ministry of labor. As the voting was to take place
in the business firm in Bataan, the acts set would nullify
whatever efforts they could have exerted. To that extent, and
with the prohibition against their going to Bataan, the restraint
on liberty was undeniable. If so, the moot and academic
character of the petition was far from clear.
More recently, we had occasion to rule squarely on whether or not a temporary
release from detention renders the petition for writ of habeas corpus moot and
academic. As in this case of Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel
Ramos, et al, G.R. No. 69270, October 15, 1985, were temporarily released from
detention. The respondents filed a motion to dismiss the petition for habeas corpus
on the ground that the petitioners had been temporarily released and their case had,
therefore, become moot and academic. The petitioners insisted, however, that their
case may be considered moot and academic only "if their release would be
permanent." In ruling for the petitioners, we said:
Ordinarily, a petition for habeas corpus becomes moot and
academic when the restraint on the liberty of the petitioners is
lifted either temporarily or permanently. We have so held in a
 number of cases. But the instant case presents a different
situation. The question to be resolved is whether the State can
reserve the power to re-arrest a person for an offense after a
court of competent jurisdiction has absolved him of the offense.
An affirmative answer is the one suggested by the respondents
because the release of the petitioners being merely 'temporary' it
follows that they can be re-arrested at anytime despite their
acquittal by a court of competent jurisdiction. We hold that such
a reservation is repugnant to the government of laws and not of
men principle. Under this principle the moment a person is
acquitted on a criminal charge he can no longer be detained or
re-arrested for the same offense. This concept is so basic and
elementary that it needs no elaboration.
In effect the principle is clear. A release that renders a petition for a writ of habeas
corpus moot and academic must be one which is free from involuntary restraints.
Where a person continues to be unlawfully denied one or more of his
constitutional freedoms, where there is present a denial of due process, where the
restraints are not merely involuntary but appear to be unnecessary, and where a
deprivation of freedom originally valid has, in the light of subsequent
developments, become arbitrary, the person concerned or those applying in his
behalf may still avail themselves of the privilege of the writ.
The respondents have failed to show why the writ may not issue and why the
restraints on the petitioner's freedom of movement should not be lifted.
WHEREFORE, the PETITION is GRANTED. The conditions attached to the
temporary release of the petitioner are declared null and void. The temporary
release of the petitioner is declared ABSOLUTE. No costs,
SO ORDERED.
Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Escolin De la
Fuente, Cuevas, Alampay and Patajo, JJ., concur.
Aquino, C.J., took no part.
Plana, J., I reserve my vote.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR
V. PARDICO Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance cases,
allegation and proof that the persons subject thereof are missing are not enough. It
must also be shown by the required quantum of proof that their disappearance was
carried out by, "or with the authorization, support or acquiescence of, [the
government] or a political organization, followed by a refusal to acknowledge [the
same or] give information on the fate or whereabouts of [said missing] persons." 3
This petition for review on certiorari4 filed in relation to Section 19 of A.M. No.
07-9-12-SC5 challenges the July 24, 2008 Decision6 of the Regional Trial Court
(RTC), Branch 20, Malolos City which granted the Petition for Writ of
Amparo7 filed by herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies
Corporation8 (Asian Land) arrived at the house of Lolita M. Lapore (Lolita)
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam,
Malolos City. The arrival of the vehicle awakened Lolitas son, Enrique Lapore
(Bong), and Benhur Pardico (Ben), who were then both staying in her house.
When Lolita went out to investigate, she saw two uniformed guards disembarking
from the vehicle. One of them immediately asked Lolita where they could find her
son Bong. Before Lolita could answer, the guard saw Bong and told him that he
and Ben should go with them to the security office of Asian Land because a
complaint was lodged against them for theft of electric wires and lamps in the
subdivision.9
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.10 The
supervisor of the security guards, petitioner Edgardo Navia (Navia), also arrived
thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because they
received a report from a certain Mrs. Emphasis, a resident of Grand Royale
Subdivision, that she saw Bong and Ben removing a lamp from a post in said
subdivision.11 The reported unauthorized taking of the lamp was relayed thru radio
to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both work as
security guards at the Asian Land security department. Following their
departments standard operating procedure, Dio and Buising entered the report in
their logbook and proceeded to the house of Mrs. Emphasis. It was there where
Dio and Buising were able to confirm who the suspects were. They thus repaired
to the house of Lolita where Bong and Ben were staying to invite the two suspects
to their office. Bong and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben. The suspects
admitted that they took the lamp but clarified that they were only transferring it to
a post nearer to the house of Lolita.12 Soon, Navia arrived and Buising informed
him that the complainant was not keen in participating in the investigation. Since
there was no complainant, Navia ordered the release of Bong and Ben. Bong then
signed a statement to the effect that the guards released him without inflicting any
harm or injury to him.13 His mother Lolita also signed the logbook below an entry
which states that she will never again harbor or entertain Ben in her house.
Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those who might be
involved in the reported loss of electric wires and lamps within the subdivision.
After a brief discussion though, Navia allowed Ben to leave. Ben also affixed his
signature on the logbook to affirm the statements entered by the guards that he was
released unharmed and without any injury.14
Upon Navias instructions, Dio and Buising went back to the house of Lolita to
make her sign the logbook as witness that they indeed released Ben from their
custody. Lolita asked Buising to read aloud that entry in the logbook where she
was being asked to sign, to which Buising obliged. Not contented, Lolita put on
her reading glasses and read the entry in the logbook herself before affixing her
signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos City Police
Station requesting them to appear thereat on April 17, 2008 relative to the
complaint of Virginia Pardico (Virginia) about her missing husband Ben. In
compliance with the invitation, all three petitioners appeared at the Malolos City
Police Station. However, since Virginia was not present despite having received
the same invitation, the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners informed her
that they released Ben and that they have no information as to his present
whereabouts.17 They assured Virginia though that they will cooperate and help in
the investigation of her missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They were
unlawfully arrested, shoved into the Asian Land vehicle and brought to the
security office for investigation. Upon seeing Ben at the security office, Navia
lividly grumbled "Ikaw na naman?" 19 and slapped him while he was still seated.
Ben begged for mercy, but his pleas were met with a flurry of punches coming
from Navia hitting him on different parts of his body. 20 Navia then took hold of his
gun, looked at Bong, and said, "Wala kang nakita at wala kang narinig, papatayin
ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He explained that the
area where their house is located is very dark and his father had long been asking
the administrator of Grand Royale Subdivision to install a lamp to illumine their
area. But since nothing happened, he took it upon himself to take a lamp from one
of the posts in the subdivision and transfer it to a post near their house. However,
the lamp Bong got was no longer working. Thus, he reinstalled it on the post from
which he took it and no longer pursued his plan. 22
Later on, Lolita was instructed to sign an entry in the guards logbook where she
undertook not to allow Ben to stay in her house anymore. 23 Thereafter, Navia again
asked Lolita to sign the logbook. Upon Lolitas inquiry as to why she had to sign
again, Navia explained that they needed proof that they released her son Bong
unharmed but that Ben had to stay as the latters case will be forwarded to the
barangay. Since she has poor eyesight, Lolita obligingly signed the logbook
without reading it and then left with Bong.24 At that juncture, Ben grabbed Bong
and pleaded not to be left alone. However, since they were afraid of Navia, Lolita
and Bong left the security office at once leaving Ben behind. 25
Moments after Lolita and Bong reached their house, Buising arrived and asked
Lolita to sign the logbook again. Lolita asked Buising why she had to sign again
when she already twice signed the logbook at the headquarters. Buising assured
her that what she was about to sign only pertains to Bongs release. Since it was
dark and she has poor eyesight, Lolita took Buisings word and signed the logbook
without, again, reading what was written in it. 26
The following morning, Virginia went to the Asian Land security office to visit her
husband Ben, but only to be told that petitioners had already released him together
with Bong the night before. She then looked for Ben, asked around, and went to
the barangay. Since she could not still find her husband, Virginia reported the
matter to the police.
In the course of the investigation on Bens disappearance, it dawned upon Lolita
that petitioners took advantage of her poor eyesight and naivete. They made her
sign the logbook as a witness that they already released Ben when in truth and in
fact she never witnessed his actual release. The last time she saw Ben was when
she left him in petitioners custody at the security office.27
Exasperated with the mysterious disappearance of her husband, Virginia filed a
Petition for Writ of Amparo28 before the RTC of Malolos City. Finding the petition
sufficient in form and substance, the amparo court issued an Order 29dated June 26,
2008 directing, among others, the issuance of a writ of amparo and the production
of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution [in]
A.M. No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo", let a
writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the Court
the body of aggrieved party Benhur Pardico, on Monday, June 30, 2008,
at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on the
aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-two
(72) hours from service of the writ, a verified written return with
supporting affidavits which shall, among other things, contain the
following:
a) The lawful defenses to show that the [petitioners] did not
violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved
party.
(4) GRANTING, motu proprio, a Temporary Protection Order prohibiting
the [petitioners], or any persons acting for and in their behalf, under pain
of contempt, from threatening, harassing or inflicting any harm to
[respondent], his immediate family and any [member] of his household.
The Branch Sheriff is directed to immediately serve personally on the [petitioners],
at their address indicated in the petition, copies of the writ as well as this order,
together with copies of the petition and its annexes.30
A Writ of Amparo31 was accordingly issued and served on the petitioners on June
27, 2008.32 On June 30, 2008, petitioners filed their Compliance33 praying for the
denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the testimony
of Buising, while Virginia submitted the sworn statements34 of Lolita and Enrique
which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35 granting the
petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and
deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the disappearance of
[Benhur] Pardico, utilizing in the process, as part of the investigation, the
documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico
and the witnesses who testified in this case protection as it may deem
necessary to secure their safety and security; and
 (c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to
investigate the circumstances concerning the legality of the arrest of
[Benhur] Pardico by the [petitioners] in this case, utilizing in the process,
as part of said investigation, the pertinent documents and admissions
forming part of the record of this case, and take whatever course/s of
action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied by the trial court
in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT
GRAVELY ERRED IN RULING THAT RESPONDENT IS ENTITLED
TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING
ACTS IN VIOLATION OF HER HUSBANDS RIGHT TO LIFE,
LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF
BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO
WAS AT THE INSTANCE OF HEREIN PETITIONERS.39
Petitioners Arguments
Petitioners essentially assail the sufficiency of the amparo petition. They contend
that the writ of amparo is available only in cases where the factual and legal bases
of the violation or threatened violation of the aggrieved partys right to life, liberty
and security are clear. Petitioners assert that in the case at bench, Virginia
miserably failed to establish all these. First, the petition is wanting on its face as it
failed to state with some degree of specificity the alleged unlawful act or omission
of the petitioners constituting a violation of or a threat to Bens right to life, liberty
and security. And second, it cannot be deduced from the evidence Virginia
adduced that Ben is missing; or that petitioners had a hand in his alleged
disappearance. On the other hand, the entries in the logbook which bear the
signatures of Ben and Lolita are eloquent proof that petitioners released Ben on
March 31, 2008 at around 10:30 p.m. Petitioners thus posit that the trial court erred
in issuing the writ and in holding them responsible for Bens disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must perforce be
dismissed, but not for the reasons adverted to by the petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
arrest the rampant extralegal killings and enforced disappearances in the country.
Its purpose is to provide an expeditious and effective relief "to any person whose
right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual
or entity." 40
Here, Bens right to life, liberty and security is firmly settled as the parties do not
dispute his identity as the same person summoned and questioned at petitioners
security office on the night of March 31, 2008. Such uncontroverted fact ipso facto
established Bens inherent and constitutionally enshrined right to life, liberty and
security. Article 641 of the International Covenant on Civil and Political
Rights42 recognizes every human beings inherent right to life, while Article
943 thereof ordains that everyone has the right to liberty and security. The right to
life must be protected by law while the right to liberty and security cannot be
impaired except on grounds provided by and in accordance with law. This
overarching command against deprivation of life, liberty and security without due
process of law is also embodied in our fundamental law. 44
The pivotal question now that confronts us is whether Bens disappearance as
alleged in Virginias petition and proved during the summary proceedings
conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC
and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does not,
however, define extralegal killings and enforced disappearances. This omission
was intentional as the Committee on Revision of the Rules of Court which drafted
A.M. No. 07-9-12-SC chose to allow it to evolve through time and jurisprudence
and through substantive laws as may be promulgated by Congress. 45 Then, the
budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis 46 when this
Court defined enforced disappearances. The Court in that case applied the
generally accepted principles of international law and adopted the International
Convention for the Protection of All Persons from Enforced Disappearances
definition of enforced disappearances, as "the arrest, detention, abduction or any
other form of deprivation of liberty by agents of the State or by persons or groups
of persons acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or by concealment
of the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law." 47
Not long thereafter, another significant development affecting A.M. No. 07-9-12-
SC came about after Congress enacted Republic Act (RA) No. 9851 48 on
December 11, 2009. Section 3(g) thereof defines enforced or involuntary
disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing from the protection
of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion wrote in
his Separate Opinion that with the enactment of RA No. 9851, "the Rule on the
Writ of Amparo is now a procedural law anchored, not only on the constitutional
rights to the rights to life, liberty and security, but on a concrete statutory
definition as well of what an enforced or involuntary disappearance
is."50 Therefore, A.M. No. 07-9-12-SCs reference to enforced disappearances
should be construed to mean the enforced or involuntary disappearance of persons
contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced
disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to RA
No. 9851.
From the statutory definition of enforced disappearance, thus, we can derive the
following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of deprivation
of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to issue,
allegation and proof that the persons subject thereof are missing are not enough. It
must also be shown and proved by substantial evidence that the disappearance was
carried out by, or with the authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to acknowledge the same or give
information on the fate or whereabouts of said missing persons, with the intention
of removing them from the protection of the law for a prolonged period of time.
Simply put, the petitioner in an amparo case has the burden of proving by
substantial evidence the indispensable element of government participation.
In the present case, we do not doubt Bongs testimony that Navia had a menacing
attitude towards Ben and that he slapped and inflicted fistic blows upon him.
Given the circumstances and the pugnacious character of Navia at that time, his
threatening statement, "Wala kang nakita at wala kang narinig, papatayin ko na si
Ben," cannot be taken lightly. It unambiguously showed his predisposition at that
time. In addition, there is nothing on record which would support petitioners
assertion that they released Ben on the night of March 31, 2008 unscathed from
their wrath. Lolita sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And so far, the
information petitioners volunteered are sketchy at best, like the alleged complaint
of Mrs. Emphasis who was never identified or presented in court and whose
complaint was never reduced in writing.1wphi1
But lest it be overlooked, in an amparo petition, proof of disappearance alone is
not enough. It is likewise essential to establish that such disappearance was carried
out with the direct or indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is not present in this
case. The petition does not contain any allegation of State complicity, and none of
the evidence presented tend to show that the government or any of its agents
orchestrated Bens disappearance. In fact, none of its agents, officials, or
employees were impleaded or implicated in Virginias amparo petition whether as
responsible or accountable persons.51 Thus, in the absence of an allegation or proof
that the government or its agents had a hand in Bens disappearance or that they
failed to exercise extraordinary diligence in investigating his case, the Court will
definitely not hold the government or its agents either as responsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may
lie against a private individual or entity. But even if the person sought to be held
accountable or responsible in an amparo petition is a private individual or entity,
still, government involvement in the disappearance remains an indispensable
element. Here, petitioners are mere security guards at Grand Royale Subdivision in
Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private entity.
They do not work for the government and nothing has been presented that would
link or connect them to some covert police, military or governmental operation. As
discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA
No. 9851, the disappearance must be attended by some governmental involvement.
This hallmark of State participation differentiates an enforced disappearance case
from an ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch
20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of
Amparo filed by Virginia Pardico is hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183871 February 18, 2010
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY
RUBRICO CARBONEL, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON,
P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN
REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO
CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO,
ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, Respondents.
DECISION
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules of Court in relation to
Section 191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D.
Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek
to set aside the Decision3 of the Court of Appeals (CA) dated July 31, 2008 in CA-
G.R. SP No. 00003, a petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally filed
before this Court. After issuing the desired writ and directing the respondents to
file a verified written return, the Court referred the petition to the CA for summary
hearing and appropriate action. The petition and its attachments contained, in
substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence
and Security Squadron (AISS, for short) based in Fernando Air Base in
Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a
Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to,
and detained at, the air base without charges. Following a week of
relentless interrogation - conducted alternately by hooded individuals -
and what amounts to verbal abuse and mental harassment, Lourdes, chair
of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at
Dasmarias, Cavite, her hometown, but only after being made to sign a
statement that she would be a military asset.
After Lourdes release, the harassment, coming in the form of being tailed
on at least two occasions at different places, i.e., Dasmarias, Cavite and
Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued;
2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez
(P/Insp. Gomez), then sub-station commander of Bagong Bayan,
Dasmarias, Cavite, kept sending text messages to Lourdes daughter,
Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her
questions about Karapatan, an alliance of human rights organizations.
He, however, failed to make an investigation even after Lourdes
disappearance had been made known to him;
 3. A week after Lourdes release, another daughter, Jean R. Apruebo
(Jean), was constrained to leave their house because of the presence of
men watching them;
4. Lourdes has filed with the Office of the Ombudsman a criminal
complaint for kidnapping and arbitrary detention and administrative
complaint for gross abuse of authority and grave misconduct against
Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy
Santana (Santana) and a certain Jonathan, c/o Headquarters 301st AISS,
Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam
Ext., Merville Subd., Paraaque City, but nothing has happened; and the
threats and harassment incidents have been reported to the Dasmarias
municipal and Cavite provincial police stations, but nothing eventful
resulted from their respective investigations.
Two of the four witnesses to Lourdes abduction went into hiding after
being visited by government agents in civilian clothes; and
5. Karapatan conducted an investigation on the incidents. The
investigation would indicate that men belonging to the Armed Forces of
the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air
Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led
the abduction of Lourdes; that unknown to the abductors, Lourdes was
able to pilfer a "mission order" which was addressed to CA Ruben Alfaro
and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual
respondents to desist from performing any threatening act against the security of
the petitioners and for the Office of the Ombudsman (OMB) to immediately file an
information for kidnapping qualified with the aggravating circumstance of gender
of the offended party. It also prayed for damages and for respondents to produce
documents submitted to any of them on the case of Lourdes.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.
Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff,
Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National
Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police
Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB
(answering respondents, collectively) filed, through the Office of the Solicitor
General (OSG), a joint return on the writ specifically denying the material
inculpatory averments against them. The OSG also denied the allegations against
the following impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan,
and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as
to the allegations truth. And by way of general affirmative defenses, answering
respondents interposed the following defenses: (1) the President may not be sued
during her incumbency; and (2) the petition is incomplete, as it fails to indicate the
matters required by Sec. 5(d) and (e) of the Amparo Rule. 4
Attached to the return were the affidavits of the following, among other public
officials, containing their respective affirmative defenses and/or statements of
what they had undertaken or committed to undertake regarding the claimed
disappearance of Lourdes and the harassments made to bear on her and her
daughters:
1. Gen. Esperon attested that, pursuant to a directive of then Secretary
of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the
Commanding General of the PAF, with information to all concerned
units, to conduct an investigation to establish the circumstances behind
the disappearance and the reappearance of Lourdes insofar as the
involvement of alleged personnel/unit is concerned. The Provost Marshall
General and the Office of the Judge Advocate General (JAGO), AFP, also
undertook a parallel action.
Gen. Esperon manifested his resolve to provide the CA with material
results of the investigation; to continue with the probe on the alleged
abduction of Lourdes and to bring those responsible, including military
personnel, to the bar of justice when warranted by the findings and the
competent evidence that may be gathered in the investigation process by
those mandated to look into the matter;5
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered
upon receiving a copy of the petition is on-going vis--vis Lourdes
abduction, and that a background verification with the PNP Personnel
Accounting and Information System disclosed that the names Santana,
Alfaro, Cuaresma and one Jonathan do not appear in the police personnel
records, although the PNP files carry the name of Darwin Reyes Y.
Muga.
Per the initial investigation report of the Dasmarias municipal police
station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed
men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo
with plate number XRR 428, which plate was issued for a Mitsubishi van
to AK Cottage Industry with address at 9 Amsterdam St., Merville Subd.,
Paraaque City. The person residing in the apartment on that given
address is one Darius/Erwin See @ Darius Reyes allegedly working, per
the latters house helper, in Camp Aguinaldo.
 P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never
contacted nor coordinated with the local police or other investigating
units of the PNP after her release, although she is in the best position to
establish the identity of her abductors and/or provide positive description
through composite sketching. Nonetheless, he manifested that the PNP is
ready to assist and protect the petitioners and the key witnesses from
threats, harassments and intimidation from whatever source and, at the
same time, to assist the Court in the implementation of its
orders.61avvphi1
3. P/Supt. Roquero stated conducting, upon receipt of Lourdes
complaint, an investigation and submitting the corresponding report to the
PNP Calabarzon, observing that neither Lourdes nor her relatives
provided the police with relevant information;
4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to
cooperate with the investigating Cavite PNP; and
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for
violation of Articles 267 and 124, or kidnapping and arbitrary detention,
respectively, have been filed with, and are under preliminary
investigation by the OMB against those believed to be involved in
Lourdes kidnapping; that upon receipt of the petition for a writ
of amparo, proper coordination was made with the Office of the Deputy
Ombudsman for the Military and other Law Enforcement Offices
(MOLEO) where the subject criminal and administrative complaints were
filed.
Commenting on the return, petitioners pointed out that the return was no more than
a general denial of averments in the petition. They, thus, pleaded to be allowed to
present evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma,
Darwin Sy, and Jonathan. And with leave of court, they also asked to serve notice
of the petition through publication, owing to their failure to secure the current
address of the latter five and thus submit, as the CA required, proof of service of
the petition on them.
The hearing started on November 13, 2007.7 In that setting, petitioners counsel
prayed for the issuance of a temporary protection order (TPO) against the
answering respondents on the basis of the allegations in the petition. At the hearing
of November 20, 2007, the CA granted petitioners motion that the petition and
writ be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro,
Capt. Cuaresma, and Jonathan.
The legal skirmishes that followed over the propriety of excluding President
Arroyo from the petition, petitioners motions for service by publication, and the
issuance of a TPO are not of decisive pertinence in this recital. The bottom line is
that, by separate resolutions, the CA dropped the President as respondent in the
case; denied the motion for a TPO for the courts want of authority to issue it in
the tenor sought by petitioners; and effectively denied the motion for notice by
publication owing to petitioners failure to submit the affidavit required under Sec.
17, Rule 14 of the Rules of Court.8
After due proceedings, the CA rendered, on July 31, 2008, its partial judgment,
subject of this review, disposing of the petition but only insofar as the answering
respondents were concerned. The fallo of the CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby
rendered DISMISSING the instant petition with respect to respondent Gen.
Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr.
Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners complaint will not end up as another
unsolved case, the heads of the Armed Forces of the Philippines and the Philippine
National Police are directed to ensure that the investigations already commenced
are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the
Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to
regularly update petitioners and this Court on the status of their investigation.
SO ORDERED.
In this recourse, petitioners formulate the issue for resolution in the following
wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing [their]
Petition and dropping President Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the Presidents purported lack of immunity from suit
during her term of office. The 1987 Constitution, so they claim, has removed such
immunity heretofore enjoyed by the chief executive under the 1935 and 1973
Constitutions.
Petitioners are mistaken. The presidential immunity from suit remains preserved
under our system of government, albeit not expressly reserved in the present
constitution. Addressing a concern of his co-members in the 1986 Constitutional
Commission on the absence of an express provision on the matter, Fr. Joaquin
Bernas, S.J. observed that it was already understood in jurisprudence that the
President may not be sued during his or her tenure.9 The Court subsequently made
it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under
the umbrella of the 1987 Constitution, that indeed the President enjoys immunity
during her incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he be freed from any form
of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government. 10 x x
x "command responsibility," in its simplest terms, means the "responsibility of
And lest it be overlooked, the petition is simply bereft of any allegation as to what
specific presidential act or omission violated or threatened to violate petitioners
protected rights.
This brings us to the correctness of the assailed dismissal of the petition with
respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and
the OMB.
None of the four individual respondents immediately referred to above has been
implicated as being connected to, let alone as being behind, the alleged abduction
and harassment of petitioner Lourdes. Their names were not even mentioned in
Lourdes Sinumpaang Salaysay11 of April 2007. The same goes for the
respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of
Jean12 and Mary Joy.13
As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the
case on the theory that they, as commanders, were responsible for the unlawful
acts allegedly committed by their subordinates against petitioners. To the appellate
court, "the privilege of the writ of amparo must be denied as against Gen. Esperon
and P/Dir. Gen. Razon for the simple reason that petitioners have not presented
evidence showing that those who allegedly abducted and illegally detained
Lourdes and later threatened her and her family were, in fact, members of the
military or the police force." The two generals, the CAs holding broadly hinted,
would have been accountable for the abduction and threats if the actual
malefactors were members of the AFP or PNP.
As regards the three other answering respondents, they were impleaded because
they allegedly had not exerted the required extraordinary diligence in investigating
and satisfactorily resolving Lourdes disappearance or bringing to justice the
actual perpetrators of what amounted to a criminal act, albeit there were
allegations against P/Insp. Gomez of acts constituting threats against Mary Joy.
While in a qualified sense tenable, the dismissal by the CA of the case as against
Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of
the stated rationale underpinning the assailed decision vis--vis the two generals,
i.e., command responsibility. The Court assumes the latter stance owing to the fact
that command responsibility, as a concept defined, developed, and applied under
international law, has little, if at all, bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas,
commanders for crimes committed by subordinate members of the armed forces or
other persons subject to their control in international wars or domestic
conflict."14 In this sense, command responsibility is properly a form of criminal
complicity. The Hague Conventions of 1907 adopted the doctrine of command
responsibility,15foreshadowing the present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in
his duty of control over them. As then formulated, command responsibility is "an
omission mode of individual criminal liability," whereby the superior is made
responsible for crimes committed by his subordinates for failing to prevent or
punish the perpetrators16 (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute17 of the International
Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute
imposes individual responsibility on military commanders for crimes committed
by forces under their control. The country is, however, not yet formally bound by
the terms and provisions embodied in this treaty-statute, since the Senate has yet to
extend concurrence in its ratification.18
While there are several pending bills on command responsibility, 19 there is still no
Philippine law that provides for criminal liability under that doctrine. 20
It may plausibly be contended that command responsibility, as legal basis to hold
military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on the
theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the
incorporation clause of the Constitution.21 Still, it would be inappropriate to apply
to these proceedings the doctrine of command responsibility, as the CA seemed to
have done, as a form of criminal complicity through omission, for individual
respondents criminal liability, if there be any, is beyond the reach of amparo. In
other words, the Court does not rule in such proceedings on any issue of criminal
culpability, even if incidentally a crime or an infraction of an administrative rule
may have been committed. As the Court stressed in Secretary of National Defense
v. Manalo (Manalo),22 the writ of amparo was conceived to provide expeditious
and effective procedural relief against violations or threats of violation of the basic
rights to life, liberty, and security of persons; the corresponding amparo suit,
however, "is not an action to determine criminal guilt requiring proof beyond
reasonable doubt x x x or administrative liability requiring substantial evidence
that will require full and exhaustive proceedings." 23 Of the same tenor, and by way
of expounding on the nature and role of amparo, is what the Court said in Razon v.
Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance
[threats thereof or extra-judicial killings]; it determines responsibility, or at least
accountability, for the enforced disappearance [threats thereof or extra-judicial
killings] for purposes of imposing the appropriate remedies to address the
disappearance [or extra-judicial killings].
xxxx
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws. The simple reason is
that the Legislature has not spoken on the matter; the determination of what acts
are criminal x x x are matters of substantive law that only the Legislature has the
power to enact.24 x x x
If command responsibility were to be invoked and applied to these proceedings, it
should, at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if
there be any.
Petitioners, as the CA has declared, have not adduced substantial evidence
pointing to government involvement in the disappearance of Lourdes. To a
concrete point, petitioners have not shown that the actual perpetrators of the
abduction and the harassments that followed formally or informally formed part of
either the military or the police chain of command. A preliminary police
investigation report, however, would tend to show a link, however hazy, between
the license plate (XRR 428) of the vehicle allegedly used in the abduction of
Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in
Camp Aguinaldo.25 Then, too, there were affidavits and testimonies on events that
transpired which, if taken together, logically point to military involvement in the
alleged disappearance of Lourdes, such as, but not limited to, her abduction in
broad daylight, her being forcibly dragged to a vehicle blindfolded and then being
brought to a place where the sounds of planes taking off and landing could be
heard. Mention may also be made of the fact that Lourdes was asked about her
membership in the Communist Party and of being released when she agreed to
become an "asset."
Still and all, the identities and links to the AFP or the PNP of the alleged
abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to
be established.
Based on the separate sworn statements of Maj. Paul Ciano26 and Technical
Sergeant John N. Romano,27 officer-in-charge and a staff of the 301st AISS,
respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS
based in San Fernando Air Base. Neither were they members of any unit of the
Philippine Air Force, per the certification28 of Col. Raul Dimatactac, Air Force
Adjutant. And as stated in the challenged CA decision, a verification with the
Personnel Accounting and Information System of the PNP yielded the information
that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e.,
Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes
y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a.
Darwin Sy they were implicating in Lourdes abduction.
Petitioners, to be sure, have not successfully controverted answering respondents
documentary evidence, adduced to debunk the formers allegations directly linking
Lourdes abductors and tormentors to the military or the police establishment. We
note, in fact, that Lourdes, when queried on cross-examination, expressed the
belief that Sy/Reyes was an NBI agent.29 The Court is, of course, aware of what
was referred to in Razon30 as the "evidentiary difficulties" presented by the nature
of, and encountered by petitioners in, enforced disappearance cases. But it is
precisely for this reason that the Court should take care too that no wrong message
is sent, lest one conclude that any kind or degree of evidence, even the outlandish,
would suffice to secure amparo remedies and protection.
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the
minimum evidentiary substantiation requirement and norm to support a cause of
action under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall
establish their claims by substantial evidence.
xxxx
Sec. 18. Judgment.x x x If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such reliefs
as may be proper and appropriate; otherwise, the privilege shall be denied.
(Emphasis added.)
Substantial evidence is more than a mere imputation of wrongdoing or violation
that would warrant a finding of liability against the person charged; 31 it is more
than a scintilla of evidence. It means such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion, even if other
equally reasonable minds might opine otherwise.32 Per the CAs evaluation of their
evidence, consisting of the testimonies and affidavits of the three Rubrico women
and five other individuals, petitioners have not satisfactorily hurdled the
evidentiary bar required of and assigned to them under the Amparo Rule. In a very
real sense, the burden of evidence never even shifted to answering respondents.
The Court finds no compelling reason to disturb the appellate courts
determination of the answering respondents role in the alleged enforced
disappearance of petitioner Lourdes and the threats to her familys security.
Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon
and P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt
of the order to make a return on the writ, in issuing directives to the concerned
units in their respective commands for a thorough probe of the case and in
providing the investigators the necessary support. As of this date, however, the
investigations have yet to be concluded with some definite findings and
recommendation.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied
that they have no direct or indirect hand in the alleged enforced disappearance of
Lourdes and the threats against her daughters. As police officers, though, theirs
was the duty to thoroughly investigate the abduction of Lourdes, a duty that would
include looking into the cause, manner, and like details of the disappearance;
identifying witnesses and obtaining statements from them; and following
evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428,
and securing and preserving evidence related to the abduction and the threats that
may aid in the prosecution of the person/s responsible. As we said in Manalo,33 the
right to security, as a guarantee of protection by the government, is breached by
the superficial and one-sidedhence, ineffectiveinvestigation by the military or
the police of reported cases under their jurisdiction. As found by the CA, the local
police stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did
conduct a preliminary fact-finding on petitioners complaint. They could not,
however, make any headway, owing to what was perceived to be the refusal of
Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty.
Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their
witnesses attitude, "[They] do not trust the government agencies to protect
them."34 The difficulty arising from a situation where the party whose complicity
in extra-judicial killing or enforced disappearance, as the case may be, is alleged to
be the same party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate
ought not to pose a hindrance to the police in pursuing, on its own initiative, the
investigation in question to its natural end. To repeat what the Court said
in Manalo, the right to security of persons is a guarantee of the protection of ones
right by the government. And this protection includes conducting effective
investigations of extra-legal killings, enforced disappearances, or threats of the
same kind. The nature and importance of an investigation are captured in
the Velasquez Rodriguez case,35 in which the Inter-American Court of Human
Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective
and be assumed by the State as its own legal duty, not a step taken by private
interests that depends upon the initiative of the victim or his family or upon
offer of proof, without an effective search for the truth by the government.
(Emphasis added.)
This brings us to Mary Joys charge of having been harassed by respondent P/Insp.
Gomez. With the view we take of this incident, there is nothing concrete to support
the charge, save for Mary Joys bare allegations of harassment. We cite with
approval the following self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat P/Sr.
Gomez (ret) committed against her or her mother and sister, Mary Joy replied
"None "36
Similarly, there appears to be no basis for petitioners allegations about the OMB
failing to act on their complaint against those who allegedly abducted and illegally
detained Lourdes. Contrary to petitioners contention, the OMB has taken the
necessary appropriate action on said complaint. As culled from the affidavit 37 of
the Deputy Overall Ombudsman and the joint affidavits38 of the designated
investigators, all dated November 7, 2007, the OMB had, on the basis of said
complaint, commenced criminal39 and administrative40 proceedings, docketed as
OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma,
Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission
of counter-affidavits and verified position papers had been sent out.
The privilege of the writ of amparo, to reiterate, is a remedy available to victims of
extra-judicial killings and enforced disappearances or threats of similar nature,
regardless of whether the perpetrator of the unlawful act or omission is a public
official or employee or a private individual.
At this juncture, it bears to state that petitioners have not provided the CA with the
correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and
Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo
individually addressed to each of them have all been returned unopened. And
petitioners motion interposed before the appellate court for notice or service via
publication has not been accompanied by supporting affidavits as required by the
Rules of Court. Accordingly, the appealed CA partial judgmentdisposing of the
underlying petition for a writ of amparo without (1) pronouncement as to the
accountability, or lack of it, of the four non-answering respondents or (2) outright
dismissal of the same petition as to themhews to the prescription of Sec. 20 of
the Amparo Rule on archiving and reviving cases.41 Parenthetically, petitioners
have also not furnished this Court with sufficient data as to where the afore-named
respondents may be served a copy of their petition for review.
Apart from the foregoing considerations, the petition did not allege ultimate facts
as would link the OMB in any manner to the violation or threat of violation of the
petitioners rights to life, liberty, or personal security.
The privilege of the writ of amparo is envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons, free from fears and threats that
vitiate the quality of this life.42 It is an extraordinary writ conceptualized and
adopted in light of and in response to the prevalence of extra-legal killings and
enforced disappearances.43 Accordingly, the remedy ought to be resorted to and
granted judiciously, lest the ideal sought by the Amparo Rule be diluted and
undermined by the indiscriminate filing of amparo petitions for purposes less than
the desire to secure amparo reliefs and protection and/or on the basis of
unsubstantiated allegations.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that
the Court order the impleaded respondents "to immediately desist from doing any
acts that would threaten or seem to threaten the security of the Petitioners and to
desist from approaching Petitioners, x x x their residences and offices where they
are working under pain of contempt of [this] Court." Petitioners, however, failed to
adduce the threshold substantive evidence to establish the predicate facts to
support their cause of action, i.e., the adverted harassments and threats to their life,
liberty, or security, against responding respondents, as responsible for the
disappearance and harassments complained of. This is not to say, however, that
petitioners allegation on the fact of the abduction incident or harassment is
necessarily contrived. The reality on the ground, however, is that the military or
police connection has not been adequately proved either by identifying the
malefactors as components of the AFP or PNP; or in case identification is not
possible, by showing that they acted with the direct or indirect acquiescence of the
government. For this reason, the Court is unable to ascribe the authorship of and
responsibility for the alleged enforced disappearance of Lourdes and the
harassment and threats on her daughters to individual respondents. To this extent,
the dismissal of the case against them is correct and must, accordingly, be
sustained.
Prescinding from the above considerations, the Court distinctly notes that the
appealed decision veritably extended the privilege of the writ of amparo to
petitioners when it granted what to us are amparo reliefs. Consider: the appellate
court decreed, and rightly so, that the police and the military take specific
measures for the protection of petitioners right or threatened right to liberty or
security. The protection came in the form of directives specifically to Gen.
Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the
investigations already commenced by the AFP and PNP units, respectively, under
them on the complaints of Lourdes and her daughters are being pursued with
urgency to bring to justice the perpetrators of the acts complained of; and (2) to
submit to the CA, copy furnished the petitioners, a regular report on the progress
and status of the investigations. The directives obviously go to Gen. Esperon in his
capacity as head of the AFP and, in a sense, chief guarantor of order and security
in the country. On the other hand, P/Dir. Gen. Razon is called upon to perform a
duty pertaining to the PNP, a crime-preventing, investigatory, and arresting
institution.
As the CA, however, formulated its directives, no definitive time frame was set in
its decision for the completion of the investigation and the reportorial
requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razons
imminent compulsory retirement from the military and police services,
respectively. Accordingly, the CA directives, as hereinafter redefined and
amplified to fully enforce the amparo remedies, are hereby given to, and shall be
directly enforceable against, whoever sits as the commanding general of the AFP
and the PNP.
At this stage, two postulates and their implications need highlighting for a proper
disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention
rooted in the same acts and incidents leading to the filing of the subject amparo
petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The
usual initial steps to determine the existence of a prima facie case against the five
(5) impleaded individuals suspected to be actually involved in the detention of
Lourdes have been set in motion. It must be pointed out, though, that the filing 44 of
the OMB complaint came before the effectivity of the Amparo Rule on October
24, 2007.
Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition
should a criminal action have, in the meanwhile, been commenced. The
succeeding Sec. 23,46 on the other hand, provides that when the criminal suit is
filed subsequent to a petition for amparo, the petition shall be consolidated with
the criminal action where the Amparo Rule shall nonetheless govern the
disposition of the relief under the Rule. Under the terms of said Sec. 22, the
present petition ought to have been dismissed at the outset. But as things stand, the
outright dismissal of the petition by force of that section is no longer technically
feasible in light of the interplay of the following factual mix: (1) the Court has,
pursuant to Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the
CA, after a summary hearing, has dismissed the petition, but not on the basis of
Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents
only those believed to be the actual abductors of Lourdes, while the instant petition
impleaded, in addition, those tasked to investigate the kidnapping and detention
incidents and their superiors at the top. Yet, the acts and/or omissions subject of
the criminal complaint and the amparo petition are so linked as to call for the
consolidation of both proceedings to obviate the mischief inherent in a
multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature of the writ of
amparo as an inexpensive and effective tool to protect certain rights violated or
threatened to be violated, the Court hereby adjusts to a degree the literal
application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation
obtaining under the premises. 48 Towards this end, two things are at once
indicated: (1) the consolidation of the probe and fact-finding aspects of the instant
petition with the investigation of the criminal complaint before the OMB; and (2)
the incorporation in the same criminal complaint of the allegations in this petition
bearing on the threats to the right to security. Withal, the OMB should be
furnished copies of the investigation reports to aid that body in its own
investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the
OMB shall be given easy access to all pertinent documents and evidence, if any,
adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-
0602-E, should be allowed, if so minded, to amend her basic criminal complaint if
the consolidation of cases is to be fully effective.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and
makes a decision:
(1) Affirming the dropping of President Gloria Macapagal-Arroyo from
the petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen.
Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it
tended, under the command responsibility principle, to attach
accountability and responsibility to them, as then AFP Chief of Staff and
then PNP Chief, for the alleged enforced disappearance of Lourdes and
the ensuing harassments allegedly committed against petitioners. The
dismissal of the petition with respect to the OMB is also affirmed for
failure of the petition to allege ultimate facts as to make out a case against
that body for the enforced disappearance of Lourdes and the threats and
harassment that followed; and
(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the
incumbent Director-General of the PNP, or his successor, to ensure that
the investigations already commenced by their respective units on the
alleged abduction of Lourdes Rubrico and the alleged harassments and
threats she and her daughters were made to endure are pursued with
extraordinary diligence as required by Sec. 1749 of the Amparo Rule.
They shall order their subordinate officials, in particular, to do the
following:
(a) Determine based on records, past and present, the identities
and locations of respondents Maj. Darwin Sy, a.k.a. Darwin
Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma,
and one Jonathan; and submit certifications of this determination
to the OMB with copy furnished to petitioners, the CA, and this
Court;
(b) Pursue with extraordinary diligence the evidentiary leads
relating to Maj. Darwin Sy and the Toyota Revo vehicle with
Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners and/or witnesses,
cartographic sketches of respondents Maj. Sy/Reyes, Jimmy
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain
Jonathan to aid in positively identifying and locating them.
The investigations shall be completed not later than six (6) months from receipt of
this Decision; and within thirty (30) days after completion of the investigations,
the Chief of Staff of the AFP and the Director-General of the PNP shall submit a
full report of the results of the investigations to the Court, the CA, the OMB, and
petitioners.
This case is accordingly referred back to the CA for the purpose of monitoring the
investigations and the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment
dated July 31, 2008 of the CA.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 186640 February 11, 2010
GEN. ALEXANDER B. YANO, Chief of Staff, Armed Forces of the
Philippines, LT. GEN. VICTOR S. IBRADO, Commanding General,
Philippine Army, and MAJ. GEN. RALPH A. VILLANUEVA, Commander,
7th Infantry Division, Philippine Army, Petitioners,
vs.
CLEOFAS SANCHEZ and MARCIANA MEDINA, Respondents.
DECISION
CARPIO MORALES, J.:
On December 28, 2007, respondent Cleofas Sanchez (Cleofas) filed before this
Court a petition docketed as G.R. No. 180839 for issuance of a Writ of Amparo
with Motion for Production and Inspection directed against Gen. Hermogenes
Esperon (Gen. Esperon), the then Chief of Staff of the Armed Forces of the
Philippines (AFP).
On January 2, 2008, the Court1 resolved to issue a Writ of Amparo and ordered
Gen. Esperon to make a verified return of the writ before Court of Appeals Justice
Edgardo Sundiam, who was ordered to hear and decide the case which was
eventually redocketed as CA-G.R. SP No. 00010 WR/A.
Cleofas amended her petition2 on January 14, 2008 to include herein co-
respondent Marciana Medina (Marciana) as therein additional petitioner, and to
implead other military officers3 including Lt. Ali Sumangil (Lt. Sumangil) and Sgt.
Gil Villalobos4 (Sgt. Villalobos) as therein additional respondents.
In the Amended Petition, Cleofas and Marciana (respondents) alleged that on
September 17, 2006 at around 8:00 p.m., their respective sons Nicolas Sanchez
and Heherson Medina were catching frogs outside their home in Sitio Dalin,
Barangay Bueno, Capas, Tarlac; that at around 1:00 a.m. of the next day,
September 18, 2006, Nicolas "wives" Lourdez and Rosalie Sanchez, who were
then at home, heard gunshots and saw armed men in soldiers uniforms passing by;
that at around 4:00 a.m. of the same day, Lourdez and Rosalie went out to check
on Nicolas and Heherson but only saw their caps, slippers, pana and airgun for
catching frogs, as well as bloodstains; and that they immediately reported the
matter to the barangay officials.
Respondents narrated that they, together with other family members, proceeded on
September 19, 2006 to the Capas Station of the Philippine National Police (PNP).
Accompanied by officials of the National Commission on Indigenous Peoples
(NCIP),5 they also tried to search for Nicolas and Heherson at the Camp
Detachment of the 71st Infantry Batallion of the Philippine Army (Army) in
Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo Company of the
Armys 71st Infantry Batallion inside Hacienda Luisita, Tarlac City, but to no
avail.
Furthermore, respondents alleged that Josephine Galang Victoria, also known as
Antonina Galang (Josephine), niece of a neighbor, later informed them that she
had seen two men inside Camp Servillano Aquino of the Northern Luzon
Command (Nolcom) in San Miguel, Tarlac City on September 21, 2006, whom
Josephine later identified as Nicolas and Heherson (the victims) after respondents
had shown her their photographs; and that Josephine informed them that she saw
the victims again on September 24, 2006 and November 1, 2006,6 this time at the
Camp of the Bravo Company of the Armys 71st Infantry Batallion inside
Hacienda Luisita, where she had occasion to talk to Lt. Sumangil and Sgt.
Villalobos. Respondents filed a case on December 21, 2006 before the
Commission on Human Rights (CHR), which endorsed 7 the same to the
Ombudsman for appropriate action.
Contending that the victims life, liberty and security had been and continued to be
violated on account of their forced disappearance, respondents prayed for the
issuance of a writ of Amparo, the production of the victims bodies during the
hearing on the Writ, the inspection of certain military camps, 8 the issuance of
temporary and permanent protection orders, and the rendition of judgment under
Section 18 of the Rule on the Writ of Amparo.9
Meanwhile, a consolidated Return of the Writ,10 verified by Gen. Esperon, Lt.
Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as
Commander of the Armys 7th Infantry Division, and Lt. Col. Victor Bayani (Lt.
Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom in
Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen.
Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a
Return of the Writ upon his return from an official trip abroad.
In their Return, the military officers denied having custody of the victims. They
posited that the proper remedy of respondents was to file a petition for the issuance
of a Writ of Habeas Corpus, since the petitions ultimate objective was the
production of the bodies of the victims, as they were allegedly abducted and
illegally detained by military personnel;11 that the petition failed to indicate the
matters required by paragraphs (c), (d) and (e), Section 5 of the Rule on the Writ
of Amparo, such that the allegations were incomplete to constitute a cause of
action, aside from being based on mere hearsay evidence, and are, at best,
speculative; that respondents failed to present the affidavits of some other
competent persons which would clearly validate their claim that the military
violated the victims right to life, liberty or security by abducting or detaining
them; and that the petition did not allege any specific action or inaction attributable
to the military officers with respect to their duties; or allege that respondents took
any action by filing a formal complaint or visiting the military camps adverted to
in order to verify Josephines claim that she saw the victims on two different
occasions inside the camps, or that they took efforts to follow up on the PNP
Capas Stations further action on their complaint.12
Denying he violated the victims right to life, liberty and
security, Gen. Esperon specifically asserted that, in compliance with the Defense
Secretarys directive in relation to cases of Writ of Amparo against the AFP, he
issued directives to the Nolcom Commander and the Armys Commanding
General to investigate and establish the circumstances surrounding reported
disappearances of victims insofar as the claim on the possible involvement of the
military units was concerned; and undertook to bring any military personnel
involved, when warranted by the evidence, to the bar of justice. 13
Maj. Gen. Gomez likewise denied having custody or knowledge of the
whereabouts of the victims, stating that it was not army policy to abduct civilians
in his area of responsibility,14 and that he was away on official business at the time
of the alleged disappearance of the victims.15
Lt. Col. Bayani attested that he was designated Camp Commander only on
September 1, 2007 and thus had no personal knowledge about the victims alleged
disappearance or abduction on September 18, 2006; that he was informed by his
immediate predecessor that no individuals were detained in the camp as it did not
even have detention facilities; and that in compliance with Gen. Esperons
directive, their command was conducting further investigation to verify the
allegations in the petition.16
Lt. Sumangil denied having spoken to Josephine inside the camp on September 24,
2006, on which date civilians were not allowed to enter except on official missions
or when duly authorized to conduct transactions inside the camp. He thus
concluded that Josephine lied in claiming to have seen the two victims inside the
Camp of the Bravo Company of the 71st Infantry Batallion inside Hacienda
Luisita on September 24, 2006 or at any time thereafter. He instead recounted that
on September 24, 2006, he spoke for the first and only time, but only at the gate of
the camp, with a person who identified herself as "Antonina Galang," who
informed him about the disappearance of the victims since September 18, 2006.
Warning him that these men were members of the New Peoples Army (NPA), she
advised him not to entertain any queries or complaints relative to their alleged
disappearance.17
Sgt. Villalobos echoed Sumangils disclaimer about having any of the victims in
his custody or meeting anyone named Josephine Victoria, or about the latter
having entered the camps kitchen to drink water.
Lt. Gen. Yano stated that upon his return from his official functions overseas, he
immediately inquired on the actions taken on the case. He averred that he had
never participated directly or indirectly; or consented, permitted or sanctioned any
illegal or illegitimate military operations. He declared that it had always been his
policy to respect human rights and uphold the rule of law, and to bring those who
violated the law before the court of justice.
In opposing the request for issuance of inspection and production orders, the
military officers posited that apart from compromising national security should
entry into these military camps/bases be allowed, these orders partook of the
nature of a search warrant, such that the requisites for the issuance thereof must be
complied with prior to their issuance. They went on to argue that such request
relied solely on bare, self-serving and vague allegations contained in Josephines
affidavit, for aside from merely mentioning that she saw Nicolas and Heherson on
board an army truck near the Nolcom gate and, days later, inside the kitchen of the
71st Infantry Battalion Camp inside Hacienda Luisita and while logging outside
said camp, Josephine had stated nothing more to ascertain the veracity of the
places where she allegedly saw Nicolas and Heherson.18
On whether the impleaded military officers were either directly or indirectly
connected with the disappearance of the victims, the appellate court, after hearing,
absolved, by the assailed Decision of September 17, 2008,19 Gen. Esperon, Lt.
Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of evidence linking
them to the disappearances, and further ruled as follows:
All said, this Court is convinced that petitioners have not adequately and
convincingly established any direct or indirect link between respondents individual
military officers and the disappearances of Nicolas and Heherson. Neither did the
concerned Philippine Army Units have exerted fully their efforts to investigate and
unearth the truth and bring the culprits before the bar of justice.
The concerned Philippine Army units (such as the Northern Command and the 7th
Infantry Division, which had jurisdiction over the place of disappearance of
Nicolas and Heherson, should exert extraordinary diligence to follow all possible
leads to solve the disappearances of Nicolas and Heherson. The Philippine Army
should be reminded of its constitutional mandate as the protector of the people and
the State.
RELIEFS
While as We stated hereinbefore that We could not find any link between
respondents individual military officers to the disappearance of Nicolas and
Heherson, nonetheless, the fact remains that the two men are still missing. Hence,
We find it equitable to grant petitioners some reliefs in the interest of human rights
and justice as follows:
1. Inspections of the following camps: Camp Servillano Aquino, San
Miguel, Tarlac City, any military camp of the 7th Infantry Division
located in Aqua Farm, Hacienda Luisita, Tarlac City, within reasonable
working hours of any day except when the military camp is on red alert
status.
2. Thorough and Impartial Investigation for the appropriate
Investigating Unit of the Philippine Army at Camp Servillano Aquino and
the Philippine Army, 7th Infantry Division in Fort Magsaysay
to conduct their respective investigation of all angles pertaining to the
disappearances of Nicolas and Heherson and to immediately file charges
against those found guilty and submit their written report to this Court
within three (3) months from notice.
SO ORDERED.20 (underscoring supplied)
The military officers filed a Motion for Partial Reconsideration (Motion), arguing
in the main that since respondents failed to prove the allegations in their petition
by substantial evidence, the appellate court should not have granted those reliefs. 21
The appellate court denied the Motion by the assailed Resolution of March 3,
2009.22
Taking up the cudgels for the military, Gen. Alexander Yano,23 Lt. Gen. Victor
Ibrado,24 and Maj. Gen. Ralph Villanueva25 (petitioners) filed the present petition
for review of the appellate courts assailed issuances, faulting it for
. . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE WRIT OF
AMPARO PURSUANT TO SECTION 18 OF THE RULE ON THE WRIT OF
AMPARO DESPITE ITS FINDING THAT RESPONDENTS FAILED TO
PROVE THEIR ALLEGATIONS IN THEIR PETITION FOR AMPARO BY
SUBSTANTIAL EVIDENCE. . . . [AND] . . . DIRECTING PETITIONERS TO:
(A) ALLOW RESPONDENTS TO INSPECT CAMP SERVILLANO
AQUINO, NORTH LUZON COMMAND, PHILIPPINE ARMY, SAN
MIGUEL, TARLAC CITY AND ANY MILITARY CAMP OF THE 7th
INFANTRY DIVISION LOCATED IN AQUA FARM, HACIENDA
LUISITA, TARLAC CITY; AND.
(B) CONDUCT THOROUGH AND IMPARTIAL
INVESTIGATION OF THE DISAPPEARANCE OF THE AGGRIEVED
PARTIES, FILE CHARGES AGAINST THOSE FOUND GUILTY
AND SUBMIT WRITTEN REPORT WITHIN THREE MONTHS
FROM NOTICE.26 (emphasis and underscoring supplied)
The Court finds merit in the petition.
In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate court resolved
the case on the basis of the credibility of Josephine as a witness. It arrived at the
following findings:
To prove that these two military officers took or have custody of Nicolas and
Heherson, petitioners presented Josephine Galang Victoria, also known as
Antonina Galang, a niece of petitioner Cleofas Sanchez neighbor, who allegedly
saw Nicolas and Heherson inside Camp Servillano Aquino on September 21, 2006
when she visited her uncle, a certain Major Henry Galang, who is allegedly living
inside the camp; that a few days later, she again saw Nicolas and Heherson at
Aqua Farm at Hacienda Luisita, where the camp of Bravo Company of the 71st
Infantry Battalion is located and where Heherson was seen sweeping the floor and
Nicolas was seen cooking, having wounds in their legs near the feet as if sustained
from a gunshot wound; that on November 1, 2006, she went back upon advice of
Lt. Sumangil to give her a cellfone which Tech. Sgt. Villalobos handed to her for
her to know where Nicolas and Heherson will be brought; that they [sic] saw the
two outside getting some woods under the watchful eye of a soldier when
Sumangil kicked Nicolas for being slow and thereafter, she did not see the two
anymore.
While Josephine Galang Victorias story of how she saw the subject two missing
persons (Nicolas and Heherson) appeared initially as plausible, however, her
credibility as a witness had been successfully destroyed by the following witnesses
presented by the respondents.
1) Barangay Captain Rodolfo P. Supan of Cut-Cut II, Tarlac City, attested
that she knows a certain woman named Josephine Galang Victoria who
introduces herself as Antonina Galang, niece through the cousin of his
wife and a long-time resident of Cut-Cut II since birth until she lived with
her partner Philip Victoria and they still visit and goes to her auntie or
siblings house; that he knows the reputation of Josephine Victoria as bad
regarding her telling the truth, her truthfulness and integrity, known to
fool others and invents stories for money reasons, that she cannot be
trusted even if she is under oath before God and the State.
2) As if that is not yet enough, Gloria Galang Mansalay testified that she
is a resident of Cut-Cut II since birth in 1964 and she knows Josephine
Galang Victoria because she is her niece being the daughter of her older
brother; that she even took care of Antonina as a child but her general
reputation in telling the truth, her fidelity and integrity is bad, known to
fool others, a liar and invent [sic] stories for reason of money.
3) Clarita Galang Ricafrente saying that she is a resident of Cut-cut II and
Antonina Galang is a niece and attested the same negative reputations
against Antonina.
It appears that said negative testimonies of Josephine Galang Victorias relatives
were never successfully rebutted by her and the Court gives credence to them. No
ill motive [sic] were established against the said witnesses to testify against
Antonina Galang.
Furthermore, Antonina Galang stated that she was in Camp Servillano Aquino
when she first saw Nicolas and Heherson riding in an army truck because she was
visiting her uncle, Major Henry Galang, allegedly living in the camp.
Parenthetically, this story of Antonina Galang was put to doubt. TSG Edgard
Reyes who attested that as a meter reader in the camp, Major Galang was no
longer residing there in September 2006. This testimony and revelation of TSG
Reyes only bolstered the testimonies of the other witnesses on Antonina Galangs
penchant to invent stories or tell a lie.
In sum, We are not inclined to give credence to the claims of Antonina Galang that
the two missing person [sic] she saw first in Camp Servillano Aquino and later, in
Aqua Farm, were Nicolas and Heherson. Notably, Antonina Galang never did see
the faces of the two but were known to her through photographs. Certainly, there
may be a difference between photographs and the faces in person.
To be noted also is that even the two wives of Nicolas did not make an express
attestation that they saw Nicolas and Heherson in the company of those armed
men who passed their place in the early morning of September 18,
2006.27 (underscoring supplied)
NOTABLY, respondents neither moved for reconsideration nor appealed the
appellate courts September 17, 2008 Decision.
The entrenched procedural rule in this jurisdiction is that a party who did not
appeal cannot assign such errors as are designed to have the judgment modified.
All that said appellee can do is to make a counter-assignment of errors or to argue
on issues raised at the trial only for the purpose of sustaining the judgment in his
favor, even on grounds not included in the decision of the court a quo or raised in
the appellants assignment of errors or arguments.28
This tenet is enshrined as one of the basic principles in our rules of procedure,
specifically to avoid ambiguity in the presentation of issues, facilitate the setting
forth of arguments by the parties, and aid the court in making its determinations. A
party who fails to acquire complete relief from a decision of the court has various
remedies to correct an omission by the court. He may move for a correction or
clarification of judgment, or even seek its modification through ordinary appeal.
There is thus no basis for the Court to skip the rule and excuse herein respondents
for failure to properly avail themselves of the remedies in the face of the parties
contentions that have remained disputed.29
What is thus left for the Court to resolve is the issue of whether the grant of the
RELIEFS30 by the appellate court after finding want of substantial evidence are
valid and proper.
Sections 17 and 18 of the Amparo Rule lay down the requisite standard of proof
necessary to prove either partys claim, viz:
SEC. 17. Burden of Proof and Standard of Diligence Required. - The parties shall
establish their claim by substantial evidence.
The respondent who is a private individual or entity must prove that ordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed to evade responsibility or liability.
SEC. 18. Judgment. - The Court shall render judgment within ten (10) days from
the time the petition is submitted for decision. If the allegations in the petition are
proven by substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. (emphasis and underscoring supplied)
The requisite standard of proof substantial evidence - speaks of the clear intent
of the Rule to have the equivalent of an administrative proceeding, albeit judicially
conducted, in resolving amparo petitions.
To the appellate court, the evidence adduced in the present case failed to measure
up to that standard substantial evidence which a reasonable mind might accept as
adequate to support a conclusion. Since respondents did not avail of any remedy
against the adverse judgment, the appellate courts decision is, insofar as it
concerns them, now beyond the ambit of review.
Meanwhile, the requirement for a government official or employee to observe
extraordinary diligence in the performance of duty stresses the extraordinary
measures expected to be taken in safeguarding every citizens constitutional rights
as well as in the investigation of cases of extra-judicial killings and enforced
disappearances.31
The failure to establish that the public official observed extraordinary diligence in
the performance of duty does not result in the automatic grant of the privilege of
the amparo writ. It does not relieve the petitioner from establishing his or her
claim by substantial evidence. The omission or inaction on the part of the public
official provides, however, some basis for the petitioner to move and for the court
to grant certain interim reliefs.
In line with this, Section 14 of the Amparo Rule provides for interim or
provisional reliefs that the courts may grant in order to, inter alia, protect the
witnesses and the rights of the parties, and preserve all relevant evidence, viz:
SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final
judgment, the court, justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon motion or
motu proprio, may order that the petitioner or the aggrieved party and any member
of the immediate family be protected in a government agency or by an accredited
person or private institution capable of keeping and securing their safety. If the
petitioner is an organization, association or institution referred to in Section 3 (c)
of this Rule, the protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private institutions that shall
extend temporary protection to the petitioner or the aggrieved party and any
member of the immediate family, in accordance with guidelines which it shall
issue.
The accredited persons and private institutions shall comply with the rules and
conditions that may be imposed by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and after
due hearing, may order any person in possession or control of a designated land or
other property, to permit entry for the purpose of inspecting, measuring, surveying,
or photographing the property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected. It shall be
supported by affidavits or testimonies of witnesses having personal knowledge of
the enforced disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged
nature of the information, the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition.
The movant must show that the inspection order is necessary to establish the right
of the aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the
inspection and the date, time, place and manner of making the inspection and may
prescribe other conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. The court, justice, or judge, upon verified motion and
after due hearing, may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged
nature of the information, in which case the court, justice or judge may conduct a
hearing in chambers to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the
constitutional rights of all the parties. (emphasis and underscoring supplied)
These provisional reliefs are intended to assist the court before it arrives at a
judicious determination of the amparopetition. For the appellate court to, in the
present case, still order the inspection of the military camps and order the army
units to conduct an investigation into the disappearance of Nicolas and
Heherson after it absolved petitioners is thus not in order. The reliefs granted by
the appellate court to respondents are not in sync with a finding that petitioners
could not be held accountable for the disappearance of the victims.
Respondents posit that there appears to be some shared confusion as to whether the
reliefs granted by the appellate court are final or interlocutory. They thus implore
this Court to modify the appellate courts judgment by considering the reliefs as
temporary or interlocutory and by adding thereto an order for the production of
logbooks and reports.32
At this late stage, respondents can no longer avail themselves of their stale
remedies in the guise of praying for affirmative reliefs in their Comment. No
modification of judgment could be granted to a party who did not appeal.33
If respondents believed that the September 17, 2008 Decision of the appellate
court was merely interlocutory, they had every opportunity to question the
conclusion of said court, but they did not. They could have opposed petitioners
motion for reconsideration filed with the appellate court, it being a prohibited
pleading34 under the Amparo Rule, but they did not.
WHEREFORE, the petition is GRANTED. The assailed September 17, 2008
Decision and March 3, 2009 Resolution of the Court of Appeals, insofar as it
grants the assailed earlier-quoted reliefs are SET ASIDE.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182498 December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP);
Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal
Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response
(PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM,
PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari 1 the decision dated March 7,
2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA
decision confirmed the enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B.
Tagitis (respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo Rules. The privileges of the
writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE
VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent
GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL.
AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR.
SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life, liberty and
security of Engr. Morced Tagitis, but also to extend the privileges of the writ of
amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of
their actions to this Court, as a way of PERIODIC REVIEW to enable this Court
to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet,
Zamboanga City, both being with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.3 It embodies, as a remedy, the courts directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers to
the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In all
these cases, the issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings.
In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court
is unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checked-
in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga. When Kunnong returned from this
errand, Tagitis was no longer around.5 The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.6 Kunnong looked for Tagitis and even sent a text message to the latters
Manila-based secretary who did not know of Tagitis whereabouts and activities
either; she advised Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station. 8 On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-
Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-
PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed
to be police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic]
be contacted by phone and was not also around and his room was closed and
locked;
9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and other
personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by
phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought
help from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
the police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is [sic]
in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to extend
the needed help, support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30, 2007 which is almost
two (2) months now, clearly indicates that the [petitioners] are actually in physical
possession and custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of the [petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to
file their verified return within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis alleged abduction. They
argued that the allegations of the petition were incomplete and did not constitute a
cause of action against them; were baseless, or at best speculative; and were
merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated
that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria Macapagal
Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task Force,
inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office
ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at
ASY Pension House on October 30, 2007 at about 6:00 in the morning
and then roamed around Jolo, Sulu with an unidentified companion. It
was only after a few days when the said victim did not return that the
matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO
conducted a thorough investigation to trace and locate the whereabouts of
the said missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the whereabouts
of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to
the Director, CIDG. The said report stated among others that: subject
person attended an Education Development Seminar set on October 28,
2007 conducted at Ateneo de Zamboanga, Zamboanga City together with
a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the
morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V
Bounty Cruise, he was then billeted at ASY Pension House. At about
6:15 oclock in the morning of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga City and will depart
from Jolo, Sulu on October 31, 2007. That on or about 10:00 oclock in
the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the
student instructed to purchase the ticket arrived at the pension house and
waited for Engr. Tagitis, but the latter did not return. On its part, the
elements of 9RCIDU is now conducting a continuous case build up and
information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted
or illegally detained by covert CIDG-PNP Intelligence Operatives since
October 30, 2007, but after diligent and thorough search, records show
that no such person is being detained in CIDG or any of its department or
divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the perpetrators to
bring them before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed
the Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He checked in at ASY pension
house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six oclock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In
the afternoon of the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found
anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported
the incident to the police. The CIDG is not involved in the disappearance of Engr.
Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being detained
in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS
on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention case.
Simply put, our task is to go after kidnappers and charge them in court and to
abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the disappearance
of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance
of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim
Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP
and PNP units/agencies in the area are ongoing with the instruction not to leave
any stone unturned so to speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during
the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee
of Islamic Development Bank, appeared before the Office of the Chief of Police,
Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis,
scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken
by any member of the Philippine National Police but rather he just disappeared
from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu,
on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the
Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to identify
and apprehend the person or persons involved in the disappearance so that they
shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22,
2007 directing PD Sulu PPO to conduct joint investigation with CIDG
and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28,
2007 directing PD Sulu PPO to expedite compliance to my previous
directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative
statements regarding the disappearance and whereabouts of said
personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily
submit for polygraph examination with the NBI so as to expunge all
clouds of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional
Chief, Criminal Investigation and Detection Group, Police Regional
Office 9, Zamboanga City, requesting assistance to investigate the cause
and unknown disappearance of Engr. Tagitis considering that it is within
their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite
No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office
that they are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of
Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP
informing him of the facts of the disappearance and the action being
taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director,
Directorate for Investigation and Detection Management, NHQ PNP;
 c) Memorandum dated December 30, 2007 addressed to the Director,
DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
as the officer in command of the area of disappearance to form TASK FORCE
TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three
hearings to monitor whether TASK FORCE TAGITIS was exerting "extraordinary
efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first hearing
would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be
to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing
would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis disappearance. 22 The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended
for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention
cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.25 He further testified that prior to the
hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but
failed to get any lead from the respondent in Jolo.26 In his submitted investigation
report dated January 16, 2008, PS Supt. Ajirim concluded: 27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the coordinator of
said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force
Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after
the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM
had requested for clear photographs when it should have been standard
operating procedure in kidnappings or disappearances that the first
agenda was for the police to secure clear pictures of the missing person,
 Engr. Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL
GOLTIAO admitted having been informed on November 5, 2007 of the
alleged abduction of Engr. Morced Tagitis by alleged bad elements of the
CIDG. It had been more than one (1) month since the Writ of Amparo
had been issued on December 28, 2007. It had been three (3) weeks when
battle formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of the missing person, Engr.
Morced Tagitis, despite the Task Force Tagitis claim that they already
had an "all points bulletin", since November 5, 2007, on the missing
person, Engr. Morced Tagitis. How could the police look for someone
who disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed
this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims
replacement in the latters official designated post. Yet, P/Supt KASIMs
subpoena was returned to this Court unserved. Since this Court was made
to understand that it was P/Supt KASIM who was the petitioners
unofficial source of the military intelligence information that Engr.
Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of
the Petition), the close contact between P/Supt KASIM and Col. Ahirom
Ajirim of TASK FORCE TAGITIS should have ensured the appearance
of Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad
elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
"specify" her allegations, "particularly paragraph 15 of the petition." 29 This friend
also told her that her husband "[was] in good hands." 30 The respondent also
testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is
holding [her husband], Engineer Morced Tagitis." 31 The respondent recounted that
she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin
Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were
then with her) a "highly confidential report" that contained the "alleged activities
of Engineer Tagitis" and informed her that her husband was abducted because "he
is under custodial investigation" for being a liaison for "J.I. or Jemaah
Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.33 She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way
to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.35 The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her husbands
disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phones battery did
not have enough power, and that he would call her when he had fully-charged his
cellular phones battery.36
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her
boss.37 She also testified that she was with three other people, namely, Mrs.
Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when
Col. Kasim read to them the contents of the "highly confidential report" at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication. 38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,39 signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at
Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs
of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N.
Tagitis. After he gathered all information, he revealed to us the contents of text
messages they got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis
was that she was not allowed to answer any telephone calls in his condominium
unit.
While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the
city. His two staffs accompanied us to the mall to purchase our plane ticket going
back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He assured
me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet
I did not believe his given statements of the whereabouts of my husband, because I
contacted some of my friends who have access to the groups of MILF, MNLF and
ASG. I called up Col. Ancanan several times begging to tell me the exact location
of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my husband.
Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan
ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the
office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the
Chief of Police of Jolo told me not to contact any AFP officials and he promised
me that he can solve the case of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I
asked him a favor to contact his connections in the military in Jolo, Sulu where the
abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp
Katitipan located in Davao City looking for high-ranking official who can help me
gather reliable information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured me
that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that
I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential
information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends.
That was the time that Col. Kasim read to us the confidential report that Engr.
Tagitis was allegedly connected [with] different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik
Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that "Please dont quote my Name! Because this is a raw
report." He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs.
Talbin testified that she was with the respondent when she went to Zamboanga to
see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim. 44 The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted
that based on the report Col. Kasim read in their presence, Tagitis was under
custodial investigation because he was being charged with terrorism; Tagitis in
fact had been under surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan,
a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could
not give a copy of the report because it was a "raw report." 45 She also related that
the Col. Kasim did not tell them exactly where Tagitis was being kept, although he
mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized
that despite what his January 4, 2008 affidavit indicated, 51 he never told PS Supt.
Pingay, or made any accusation, that Tagitis took away money entrusted to
him.52 Prof. Matli confirmed, however, that that he had received an e-mail
report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the
IDB was seeking assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.54
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.55 Prof Matli clarified that although he read the affidavit before signing it,
he "was not so much aware of [its] contents." 56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP. 57 Col.
Kasim categorically denied the statements made by the respondent in her narrative
report, specifically: (1) that Tagitis was seen carrying boxes of medicines as
supplier for the injured terrorists; (2) that Tagitis was under the custody of the
military, since he merely said to the respondent that "your husband is in good
hands" and is "probably taken cared of by his armed abductors;" and (3) that
Tagitis was under custodial investigation by the military, the PNP or the CIDG
Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received
from his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG.59 He also stressed that the information he provided to the respondent was
merely a "raw report" sourced from "barangay intelligence" that still needed
confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a "civilian asset," through
a letter which he considered as "unofficial." 61 Col. Kasim stressed that the letter
was only meant for his "consumption" and not for reading by others.62 He testified
further that he destroyed the letter right after he read it to the respondent and her
companions because "it was not important to him" and also because the
information it contained had no importance in relation with the abduction of
Tagitis.63 He explained that he did not keep the letter because it did not contain
any information regarding the whereabouts of Tagitis and the person(s)
responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm"
of the PNP, and that the CIDG "investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported
disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu
CIDT had no capability to conduct any "operation," since they were only assigned
to investigate matters and to monitor the terrorism situation. 68 He denied that his
office conducted any surveillance on Tagitis prior to the latters
disappearance.69 Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was "still facing a blank wall"
on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision 71 confirming that the disappearance
of Tagitis was an "enforced disappearance" under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced Disappearances. 72 The
CA ruled that when military intelligence pinpointed the investigative arm of the
PNP (CIDG) to be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was involved was based
on the respondents testimony, corroborated by her companion, Mrs. Talbin. The
CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military an
independent agency of government. The CA thus greatly relied on the "raw report"
from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis
abduction. The CA held that "raw reports" from an "asset" carried "great weight"
in the intelligence world. It also labeled as "suspect" Col. Kasims subsequent and
belated retraction of his statement that the military, the police, or the CIDG was
involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of
speculation" police theories painting the disappearance as "intentional" on the part
of Tagitis. He had no previous brushes with the law or any record of overstepping
the bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police theory that Tagitis was
"trying to escape from the clutches of his second wife," on the basis of the
respondents testimony that Tagitis was a Muslim who could have many wives
under the Muslim faith, and that there was "no issue" at all when the latter
divorced his first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the
cause for Tagitis disappearance, since the respondent, the police and the military
noted that there was no acknowledgement of Tagitis abduction or demand for
payment of ransom the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante,
PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of
Tagitis, with the obligation to provide monthly reports of their actions to the CA.
At the same time, the CA dismissed the petition against the then respondents from
the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding
that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008. 73
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of the Amparo
petition filed before the CA; the sufficiency of the legal remedies the respondent
took before petitioning for the writ; the finding that the rights to life, liberty and
security of Tagitis had been violated; the sufficiency of evidence supporting the
conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga
was responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.74
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondents Amparo
petition, the petitioners contend that the petition violated Section 5(c), (d), and (e)
of the Amparo Rule. Specifically, the petitioners allege that the respondent failed
to:
1) allege any act or omission the petitioners committed in violation of
Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source of
information;
3) allege that the abduction was committed at the petitioners instructions
or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged
to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance;
and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite): 75
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in
every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. 76 In an Amparo
petition, however, this requirement must be read in light of the nature and purpose
of the proceeding, which addresses a situation of uncertainty; the petitioner may
not be able to describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or covered up by
those who caused the disappearance. In this type of situation, to require the level
of specificity, detail and precision that the petitioners apparently want to read into
the Amparo Rule is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victims rights to life,
liberty and security through State or private party action. The petition should
likewise be read in its totality, rather than in terms of its isolated component parts,
to determine if the required elements namely, of the disappearance, the State or
private action, and the actual or threatened violations of the rights to life, liberty or
security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis rights to life,
liberty and security were violated when he was "forcibly taken and boarded on a
motor vehicle by a couple of burly men believed to be police intelligence
operatives," and then taken "into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups." 77
These allegations, in our view, properly pleaded ultimate facts within the pleaders
knowledge about Tagitis disappearance, the participation by agents of the State in
this disappearance, the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right to
liberty. Thus, the petition cannot be faulted for any failure in its statement of a
cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary
nature of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiants direct testimony. 78 This
requirement, however, should not be read as an absolute one that necessarily leads
to the dismissal of the petition if not strictly followed. Where, as in this case, the
petitioner has substantially complied with the requirement by submitting a verified
petition sufficiently detailing the facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially fulfilled. We note that the
failure to attach the required affidavits was fully cured when the respondent and
her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7
and 17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.79
We reject the petitioners argument that the respondents petition did not comply
with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in
its paragraph 11 that Kunnong and his companions immediately reported Tagitis
disappearance to the police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave them the "ready
answer" that Tagitis could have been abducted by the Abu Sayyaf group or other
anti-government groups. The respondent also alleged in paragraphs 17 and 18 of
her petition that she filed a "complaint" with the PNP Police Station in Cotobato
and in Jolo, but she was told of "an intriguing tale" by the police that her husband
was having "a good time with another woman." The disappearance was alleged to
have been reported, too, to no less than the Governor of the ARMM, followed by
the respondents personal inquiries that yielded the factual bases for her petition. 80
These allegations, to our mind, sufficiently specify that reports have been made to
the police authorities, and that investigations should have followed. That the
petition did not state the manner and results of the investigation that the Amparo
Rule requires, but rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported failed efforts,
should not be a reflection on the completeness of the petition. To require the
respondent to elaborately specify the names, personal circumstances, and
addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the
respondents frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise
is not supported by sufficient allegations to constitute a proper cause of action as
a means to "fish" for evidence.81 The petitioners contend that the respondents
petition did not specify what "legally available efforts were taken by the
respondent," and that there was an "undue haste" in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege "the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission." The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed
to be police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone
and other responsible officers and coordinators of the IDB Scholarship Programme
in the Philippines who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to
find her husband, but [the respondents] request and pleadings failed to produce
any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying to
the different suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of [the petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had
every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on
the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation,
a brief look at the historical context of the writ and enforced disappearances would
be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree
of December 7, 1941.82 The Third Reichs Night and Fog Program, a State policy,
was directed at persons in occupied territories "endangering German security";
they were transported secretly to Germany where they disappeared without a trace.
In order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have "disappeared" during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue
became an international concern when the world noted its widespread and
systematic use by State security forces in that continent under Operation
Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the
practice saw political activists secretly arrested, tortured, and killed as part of
governments counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American media standardized
the term "disappearance" to describe the phenomenon. The victims of enforced
disappearances were called the "desaparecidos," 86 which literally means the
"disappeared ones."87 In general, there are three different kinds of "disappearance"
cases:
1) those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate
warrant and held in complete isolation for weeks or months while their
families are unable to discover their whereabouts and the military
authorities deny having them in custody until they eventually reappear in
one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their
lifeless bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos term when only 87 cases were reported, while the three-
year term of former President Joseph E. Estrada yielded 58 reported cases.
KARAPATAN, a local non-governmental organization, reports that as of March
31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The
Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.90 Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance91 reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008. 92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings
and enforced disappearances or threats thereof." 93 We note that although the writ
specifically covers "enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court Committee on the
Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings and
disappearances will define the jurisdiction of the courts. So well have to agree
among ourselves about the nature of killings and disappearances for instance, in
other jurisdictions, the rules only cover state actors. That is an element
incorporated in their concept of extrajudicial killings and enforced disappearances.
In other jurisdictions, the concept includes acts and omissions not only of state
actors but also of non state actors. Well, more specifically in the case of the
Philippines for instance, should these rules include the killings, the disappearances
which may be authored by let us say, the NPAs or the leftist organizations and
others. So, again we need to define the nature of the extrajudicial killings and
enforced disappearances that will be covered by these rules. [Emphasis
supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
mindful that an elemental definition may intrude into the ongoing legislative
efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.99 The simple reason is
that the Legislature has not spoken on the matter; the determination of what acts
are criminal and what the corresponding penalty these criminal acts should carry
are matters of substantive law that only the Legislature has the power to enact
under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial
killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate "rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts," 100 since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and security.
Although the Courts power is strictly procedural and as such does not diminish,
increase or modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public authorities
may have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do
not rule on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in determining
whether an enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the appropriate
remedies to address it. The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure
that all efforts at disclosure and investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are less than what the
individual situations require. The second is to address the disappearance, so that
the life of the victim is preserved and his or her liberty and security restored. In
these senses, our orders and directives relative to the writ are continuing efforts
that are not truly terminated until the extrajudicial killing or enforced
disappearance is fully addressed by the complete determination of the fate and the
whereabouts of the victim, by the production of the disappeared person and the
restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.101 It does not only violate the right
to life, liberty and security of the desaparecido; it affects their families as well
through the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to be
"a double form of torture," with "doubly paralyzing impact for the victims," as
they "are kept ignorant of their own fates, while family members are deprived of
knowing the whereabouts of their detained loved ones" and suffer as well the
serious economic hardship and poverty that in most cases follow the disappearance
of the household breadwinner. 102
The UN General Assembly first considered the issue of "Disappeared Persons" in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from "reports from various parts of the world
relating to enforced or involuntary disappearances," and requested the "UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations." 103
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided in its
third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted
against their will or otherwise deprived of their liberty by officials of different
branches or levels of Government, or by organized groups or private individuals
acting on behalf of, or with the support, direct or indirect, consent or acquiescence
of the Government, followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation of their liberty,
which places such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).105 The Convention was opened for
signature in Paris, France on February 6, 2007. 106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be
the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance107 and that this right is non-
derogable.108 It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance
as an offense punishable with appropriate penalties under their criminal law. 109 It
also recognizes the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the disappeared and
on the progress and results of the investigation.110 Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established. 111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance
as a crime. The absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to "promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,
sex, language or religion."112 Although no universal agreement has been reached
on the precise extent of the "human rights and fundamental freedoms" guaranteed
to all by the Charter,113 it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its effects
on the country, given our own adherence to "generally accepted principles of
international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of
general or customary international law that are binding on all states. We held
further:117
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.
[Emphasis in the original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply "international custom, as evidence of a general practice
accepted as law."118 The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the practice
of international organs, and resolutions relating to legal questions in the UN
General Assembly.119 Sometimes referred to as "evidence" of international
law,120 these sources identify the substance and content of the obligations of States
and are indicative of the "State practice" and "opinio juris" requirements of
international law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994. 122 State parties
undertook under this Convention "not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension of individual
guarantees."123 One of the key provisions includes the States obligation to enact
the crime of forced disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to extradite him," which can
be interpreted as establishing universal jurisdiction among the parties to the Inter-
American Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to be
criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit
provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention
in a way that provides ample protection for the underlying rights affected by
enforced disappearance through the Conventions Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty and security;
Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an
effective remedy. A leading example demonstrating the protection afforded by the
European Convention is Kurt v. Turkey,126where the ECHR found a violation of
the right to liberty and security of the disappeared person when the applicants son
disappeared after being taken into custody by Turkish forces in the Kurdish village
of Agilli in November 1993. It further found the applicant (the disappeared
persons mother) to be a victim of a violation of Article 3, as a result of the silence
of the authorities and the inadequate character of the investigations undertaken.
The ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.127
Third, in the United States, the status of the prohibition on enforced disappearance
as part of customary international law is recognized in the most recent edition of
Restatement of the Law: The Third,128 which provides that "[a] State violates
international law if, as a matter of State policy, it practices, encourages, or
condones (3) the murder or causing the disappearance of individuals." 129 We
significantly note that in a related matter that finds close identification with
enforced disappearance the matter of torture the United States Court of
Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala130 that the
prohibition on torture had attained the status of customary international law. The
court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision
the obligations of member nations under the Charter. Since their adoption,
"(m)embers can no longer contend that they do not know what human rights they
promised in the Charter to promote." Moreover, a U.N. Declaration is, according
to one authoritative definition, "a formal and solemn instrument, suitable for rare
occasions when principles of great and lasting importance are being enunciated."
Accordingly, it has been observed that the Universal Declaration of Human Rights
"no longer fits into the dichotomy of binding treaty against non-binding
pronouncement,' but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of adherence, and "insofar
as the expectation is gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding upon the States." Indeed,
several commentators have concluded that the Universal Declaration has become,
in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,132 i.e., crimes "committed as part of a
widespread or systematic attack against any civilian population, with knowledge of
the attack." While more than 100 countries have ratified the Rome Statute, 133 the
Philippines is still merely a signatory and has not yet ratified it. We note that
Article 7(1) of the Rome Statute has been incorporated in the statutes of other
international and hybrid tribunals, including Sierra Leone Special Court, the
Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.134 In addition, the implementing legislation
of State Parties to the Rome Statute of the ICC has given rise to a number of
national criminal provisions also covering enforced disappearance. 135
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, the above recital
shows that enforced disappearance as a State practice has been repudiated by the
international community, so that the ban on it is now a generally accepted
principle of international law, which we should consider a part of the law of the
land, and which we should act upon to the extent already allowed under our laws
and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and
Cultural Rights (ICESR) may be infringed in the course of a disappearance:136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and effectively,
viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have accessible
and effective remedies to vindicate those rights The Committee attaches
importance to States Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic law
Administrative mechanisms are particularly required to give effect to the general
obligation to investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate
breach of the Covenant. Cessation of an ongoing violation is an essential element
of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment
No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of
certain Covenant rights, States Parties must ensure that those responsible are
brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate breach
of the Covenant. These obligations arise notably in respect of those violations
recognized as criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary and
arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and,
frequently, 6). Indeed, the problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an important contributing
element in the recurrence of the violations. When committed as part of a
widespread or systematic attack on a civilian population, these violations of the
Covenant are crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to
security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II, Section 11 of
the 1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective
and be assumed by the State as its own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the government.
[Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the
"right to security" not only as a prohibition on the State against arbitrary
deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following ECHR
ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in keeping
with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual, it is incumbent on the
authorities to account for his or her whereabouts. For this reason, Article 5 must be
seen as requiring the authorities to take effective measures to safeguard against the
risk of disappearance and to conduct a prompt effective investigation into an
arguable claim that a person has been taken into custody and has not been seen
since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of
Amparo, which the Court made effective on October 24, 2007. Although the
Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of "enforced
disappearance," the materials cited above, among others, provide ample guidance
and standards on how, through the medium of the Amparo Rule, the Court can
provide remedies and protect the constitutional rights to life, liberty and security
that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of
proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary
difficulties presented by enforced disappearance cases; these difficulties form part
of the setting that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.141 Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under
some form of governmental authority. In many countries the units that plan,
implement and execute the program are generally specialized, highly-secret bodies
within the armed or security forces. They are generally directed through a separate,
clandestine chain of command, but they have the necessary credentials to avoid or
prevent any interference by the "legal" police forces. These authorities take their
victims to secret detention centers where they subject them to interrogation and
torture without fear of judicial or other controls. 142
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives. 143 We have had occasion to note this difficulty in
Secretary of Defense v. Manalo144 when we acknowledged that "where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a
distinct possibility; the central piece of evidence in an enforced disappearance
i.e., the corpus delicti or the victims body is usually concealed to effectively
thwart the start of any investigation or the progress of one that may have
begun.145 The problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights
(IACHR) observed in the landmark case of Velasquez Rodriguez146 that inherent
to the practice of enforced disappearance is the deliberate use of the States power
to destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.148 "Deniability" is central to
the policy of enforced disappearances, as the absence of any proven disappearance
makes it easier to escape the application of legal standards ensuring the victims
human rights.149 Experience shows that government officials typically respond to
requests for information about desaparecidos by saying that they are not aware of
any disappearance, that the missing people may have fled the country, or that their
names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as
required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.
[Emphasis supplied]
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear
intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required the duty of public officials and
employees to observe extraordinary diligence point, too, to the extraordinary
measures expected in the protection of constitutional rights and in the consequent
handling and investigation of extra-judicial killings and enforced disappearance
cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required. The rebuttable case, of
course, must show that an enforced disappearance took place under circumstances
showing a violation of the victims constitutional rights to life, liberty or security,
and the failure on the part of the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the
Court its first opportunity to define the substantial evidence required to arrive at a
valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. [citations
omitted] The statute provides that the rules of evidence prevailing in courts of law
and equity shall not be controlling. The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical rules
so that the mere admission of matter which would be deemed incompetent in
judicial proceedings would not invalidate the administrative order. [citations
omitted] But this assurance of a desirable flexibility in administrative procedure
does not go so far as to justify orders without a basis in evidence having rational
probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Courts first petition for a
Writ of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.[Emphasis
supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are
the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if the
Amparo Rule is to be given a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards appropriate and responsive to the
circumstances, without transgressing the due process requirements that underlie
every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR faced with a lack of
direct evidence that the government of Honduras was involved in Velasquez
Rodriguez disappearance adopted a relaxed and informal evidentiary standard,
and established the rule that presumes governmental responsibility for a
disappearance if it can be proven that the government carries out a general practice
of enforced disappearances and the specific case can be linked to that
practice.154 The IACHR took note of the realistic fact that enforced disappearances
could be proven only through circumstantial or indirect evidence or by logical
inference; otherwise, it was impossible to prove that an individual had been made
to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence,
whether testimonial or documentary, is not the only type of evidence that may be
legitimately considered in reaching a decision. Circumstantial evidence, indicia,
and presumptions may be considered, so long as they lead to conclusions
consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations
of disappearances, because this type of repression is characterized by an attempt to
suppress all information about the kidnapping or the whereabouts and fate of the
victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied
on circumstantial evidence including the hearsay testimony of Zenaida Velsquez,
the victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in
civilian clothes in broad daylight. She also told the Court that a former Honduran
military official had announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces. 155 The IACHR
likewise considered the hearsay testimony of a second witness who asserted that
he had been told by a Honduran military officer about the disappearance, and a
third witness who testified that he had spoken in prison to a man who identified
himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot be
very strict in our evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly
observed. Thus, while we must follow the substantial evidence rule, we must
observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness157 is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child
witness.158 These requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings and
enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance
within the meaning of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law." 159Under this
definition, the elements that constitute enforced disappearance are essentially
fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons
acting with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment
of the fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The
direct evidence at hand only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel desk and was never seen nor
heard of again. The undisputed conclusion, however, from all concerned the
petitioner, Tagitis colleagues and even the police authorities is that Tagistis
disappeared under mysterious circumstances and was never seen again. The
respondent injected the causal element in her petition and testimony, as we shall
discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation
that Tagistis was under CIDG Zamboanga custody stands on record, but it is not
supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as
her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was Col. Kasim, whom
the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in
Davao City. To quote the relevant portions of the respondents testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of
your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim,
told me that my husband is being abducted [sic] because he is under custodial
investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports
are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, maam.
Q: And a certain Col. Kasim told you that your husband was abducted and under
custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were
highly confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
maam.162
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people
na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic
at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na
bigyan siya ng gamot, maam."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being
held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na
yun na effort ko because I know that they would deny it, maam. 164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation by
the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November
24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if
he can furnish us the location of Engr. Tagitis. And he was reading this report. He
told us that Engr. Tagitis is in good hands. He is with the military, but he is not
certain whether he is with the AFP or PNP. He has this serious case. He was
charged of terrorism because he was under surveillance from January 2007 up to
the time that he was abducted. He told us that he was under custodial investigation.
As Ive said earlier, he was seen under surveillance from January. He was seen
talking to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and
charged with terrorism. He was seen carrying boxes of medicines. Then we asked
him how long will he be in custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that report because it was a
raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a
piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was
computerized but Im certain that it was typewritten. Im not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading
in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir. 165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw information
that he was reading to us [sic] after the custodial investigation, Engineer Tagitis
will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that
he provided them information based on the input of an unnamed asset. He simply
claimed in his testimony that the "informal letter" he received from his informant
in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also
stressed that the information he provided the respondent was merely a "raw report"
from "barangay intelligence" that still needed confirmation and "follow up" as to
its veracity.167
To be sure, the respondents and Mrs. Talbins testimonies were far from perfect,
as the petitioners pointed out. The respondent mistakenly characterized Col. Kasim
as a "military officer" who told her that "her husband is being abducted because he
is under custodial investigation because he is allegedly parang liason ng J.I." The
petitioners also noted that "Mrs. Talbins testimony imputing certain statements to
Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether
it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high
ranking police officer who would certainly know that the PNP is not part of the
military."
Upon deeper consideration of these inconsistencies, however, what appears clear
to us is that the petitioners never really steadfastly disputed or presented evidence
to refute the credibility of the respondent and her witness, Mrs. Talbin. The
inconsistencies the petitioners point out relate, more than anything else, to details
that should not affect the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points.168 We note, for example, that these
witnesses are lay people in so far as military and police matters are concerned, and
confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication169and
only tend to strengthen their probative value, in contrast to testimonies from
various witnesses dovetailing on every detail; the latter cannot but generate
suspicion that the material circumstances they testified to were integral parts of a
well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informants letter, that Tagitis, reputedly
a liaison for the JI and who had been under surveillance since January 2007, was
"in good hands" and under custodial investigation for complicity with the JI after
he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik
Islam" charged with terrorism. The respondents and Mrs. Talbins testimonies
cannot simply be defeated by Col. Kasims plain denial and his claim that he had
destroyed his informants letter, the critical piece of evidence that supports or
negates the parties conflicting claims. Col. Kasims admitted destruction of this
letter effectively, a suppression of this evidence raises the presumption that the
letter, if produced, would be proof of what the respondent claimed.171 For brevity,
we shall call the evidence of what Col. Kasim reported to the respondent to be the
"Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was
due to action with government participation, knowledge or consent and that he was
held for custodial investigation. We note in this regard that Col. Kasim was never
quoted to have said that the custodial investigation was by the CIDG Zamboanga.
The Kasim evidence only implies government intervention through the use of the
term "custodial investigation," and does not at all point to CIDG Zamboanga as
Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the
knowledge of some other person not on the witness stand (the informant). 172
To say that this piece of evidence is incompetent and inadmissible evidence of
what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably present in
Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced disappearances with the
flexibility that these difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account
the surrounding circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In the present case, we should at least
determine whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the
case.
The evidence about Tagitis personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter
proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing
in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in
the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken
funds given to him in trust for IDB scholars. Prof Matli later on stated that he
never accused Tagitis of taking away money held in trust, although he confirmed
that the IDB was seeking assistance in locating funds of IDB scholars deposited in
Tagitis personal account. Other than these pieces of evidence, no other
information exists in the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances.
While the Amparo petition recited that he was taken away by "burly men believed
to be police intelligence operatives," no evidence whatsoever was introduced to
support this allegation. Thus, the available direct evidence is that Tagitis was last
seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was
never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is the evidence, too, that colors
a simple missing person report into an enforced disappearance case, as it injects
the element of participation by agents of the State and thus brings into question
how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at
this conclusion. The respondents own inquiry in Jolo yielded the answer that he
was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the inquiry from Col.
Kasim that yielded positive results. Col. Kasims story, however, confirmed only
the fact of his custodial investigation (and, impliedly, his arrest or abduction),
without identifying his abductor/s or the party holding him in custody. The more
significant part of Col. Kasims story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam"
charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at
Talipapao, Sulu. None of the police agencies participating in the investigation ever
pursued these leads. Notably, Task Force Tagitis to which this information was
relayed did not appear to have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives
he sent to the ARMM Regional Director and the Regional Chief of the CIDG on
Tagitis, and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative
results. These, to the PNP Chief, constituted the exhaustion "of all possible
efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also
reported negative results after searching "all divisions and departments [of the
CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and
thorough research, records show that no such person is being detained in the CIDG
or any of its department or divisions." PNP-PACER Chief PS Supt. Leonardo A.
Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R.
Goltiao did no better in their affidavits-returns, as they essentially reported the
results of their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The
negative results reflected in the Returns on the writ were again replicated during
the three hearings the CA scheduled. Aside from the previously mentioned
"retraction" that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG
consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to do
with the disappearance of Tagitis; he likewise considered it premature to conclude
that Tagitis simply ran away with the money in his custody. As already noted
above, the Task Force notably did not pursue any investigation about the personal
circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis
with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to
have ever been made to look into the alleged IDB funds that Tagitis held in trust,
or to tap any of the "assets" who are indispensable in investigations of this nature.
These omissions and negative results were aggravated by the CA findings that it
was only as late as January 28, 2008 or three months after the disappearance that
the police authorities requested for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served, despite the fact that he was
designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was
not then questioned. No investigation even an internal one appeared to have
been made to inquire into the identity of Col. Kasims "asset" and what he indeed
wrote.
We glean from all these pieces of evidence and developments a consistency in the
governments denial of any complicity in the disappearance of Tagitis, disrupted
only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even
Col. Kasim, however, eventually denied that he ever made the disclosure that
Tagitis was under custodial investigation for complicity in terrorism. Another
distinctive trait that runs through these developments is the governments
dismissive approach to the disappearance, starting from the initial response by the
Jolo police to Kunnongs initial reports of the disappearance, to the responses
made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best
haphazard since the authorities were looking for a man whose picture they initially
did not even secure. The returns and reports made to the CA fared no better, as the
CIDG efforts themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the obvious, if the
abduction of Tagitis was a "black" operation because it was unrecorded or
officially unauthorized, no record of custody would ever appear in the CIDG
records; Tagitis, too, would not be detained in the usual police or CIDG detention
places. In sum, none of the reports on record contains any meaningful results or
details on the depth and extent of the investigation made. To be sure, reports of top
police officials indicating the personnel and units they directed to investigate can
never constitute exhaustive and meaningful investigation, or equal detailed
investigative reports of the activities undertaken to search for Tagitis. Indisputably,
the police authorities from the very beginning failed to come up to the
extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure, made in
an unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the government
and its officials engage in their chorus of concealment if the intent had not been to
deny what they already knew of the disappearance? Would not an in-depth and
thorough investigation that at least credibly determined the fate of Tagitis be a
feather in the governments cap under the circumstances of the disappearance?
From this perspective, the evidence and developments, particularly the Kasim
evidence, already establish a concrete case of enforced disappearance that the
Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and
quoted,173the evidence at hand and the developments in this case confirm the fact
of the enforced disappearance and government complicity, under a background of
consistent and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the law
a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the
same, the facts of this case run very close to those of Timurtas v. Turkey, 174 a case
decided by ECHR. The European tribunal in that case acted on the basis of the
photocopy of a "post-operation report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by agents (gendarmes) of the
government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although
there was no eyewitness evidence of the apprehension or subsequent detainment,
the applicant presented evidence corroborating his version of events, including a
photocopy of a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention where he was
accused of being a leader of the PKK in the Silopi region. On this basis, Turkey
was held responsible for Abdulvahaps enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the unique
facts and developments of this case we believe and so hold that the government
in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of
these organizations together with Col. Kasim, should be held fully accountable for
the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law,"175 specifies the PNP as the governmental
office with the mandate "to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their prosecution." The
PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified,
is the "investigative arm" of the PNP and is mandated to "investigate and
prosecute all cases involving violations of the Revised Penal Code, particularly
those considered as heinous crimes."176 Under the PNP organizational structure,
the PNP-CIDG is tasked to investigate all major crimes involving violations of the
Revised Penal Code and operates against organized crime groups, unless the
President assigns the case exclusively to the National Bureau of Investigation
(NBI).177 No indication exists in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis disappearance exclusively to
the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the
ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back
to the CA for appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their results
through hearings the CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of
action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court,
the CA shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision and as further
CA hearings may indicate; the petitioners submissions; the sufficiency of their
investigative efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and the respondent,
with the first report due at the end of the first quarter counted from the finality of
this Decision. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigation. The CA shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the finality of
this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
 b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-
CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced
disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through
its Chief, directly responsible for the disclosure of material facts known
to the government and to their offices regarding the disappearance of
Engineer Morced N. Tagitis, and for the conduct of proper investigations
using extraordinary diligence, with the obligation to show investigation
results acceptable to this Court;
diligence that the Rule on the Writ of Amparo and the circumstances of this case
demand. Given the unique nature of Amparo cases and their varying attendant
circumstances, these directives particularly, the referral back to and monitoring
by the CA are specific to this case and are not standard remedies that can be
applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
ARTURO D. BRION
Associate Justice

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and Republic of the Philippines
holding him accountable with the obligation to disclose information SUPREME COURT
known to him and to his "assets" in relation with the enforced Manila
disappearance of Engineer Morced N. Tagitis;
THIRD DIVISION
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action
for further investigation, periodically reporting their results to the Court G.R. No. 122966 March 25, 1999
of Appeals for consideration and action;
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
g. Requiring the Court of Appeals to submit to this Court a quarterly vs.
report with its recommendations, copy furnished the incumbent PNP and EDGAR S. ALOJADO, accused-appellant.
PNP-CIDG Chiefs as petitioners and the respondent, with the first report
due at the end of the first quarter counted from the finality of this
Decision;
PANGANIBAN, J.:
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigations; the Court of Appeals shall submit its full report for In rejecting this appeal, this Court reiterates two time-tested doctrines: (1) the
the consideration of this Court at the end of the 4th quarter counted from finding of the trial court on. the credibility of the witnesses and their testimonies
the finality of this Decision; will not be disturbed on appeal, absent any arbitrariness or oversight of any fact or
circumstance which, if considered, would affect the judgment; and (2) positive
These directives and those of the Court of Appeals made pursuant to this Decision identification prevails over alibi.
shall be given to, and shall be directly enforceable against, whoever may be the
incumbent Chiefs of the Philippine National Police and its Criminal Investigation The Case
and Detection Group, under pain of contempt from this Court when the initiatives
and efforts at disclosure and investigation constitute less than the extraordinary
Edgar S. Alojado appeals the December 13, 1995 Decision 1 of the Regional Trial
Court of Angeles City, Branch 58, in Criminal Case Nos. 94-10-705 and 94-10-
706, convicting him of two counts of rape and sentencing him to two terms
of reclusion perpetua.
In two separate but identically worded Complaints 2 dated October 18, 1994, Ma.
Julette G. Pearanda and Gerra Q. Rustia, both assisted by their respective mothers
Lolita G. Pearanda and Gemma Q. Rustia, charged appellant with statutory rape.
On November 11, 1994, both Complaints were amended to include the allegation
that the accused used a deadly weapon in committing the offense. The accusatory
portion of each of the two Amended Complaints reads as follows:
That on or about the 11th day of October, 18, 1994, in the City
of Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by taking advantage
of the tender age and innocence of the complainant, who is
below 12 years of age, did then and there willfully, unlawfully
and feloniously have carnal knowledge of the complainant
against her will and consent.
That in the commission of this offense[.] accused used a deadly
weapon against herein victim.
CONTRARY TO LAW: 3 (Underscoring found in the original.)
Upon certification by Third Assistant City Prosecutor Vicente U. Pornillos that a
preliminary investigation had been conducted, the Complaints were subsequently
treated as Information's.
Upon his arraignment on December 22, 1994, appellant, assisted by Counsel de
parte Juanito O. Velasco, pleaded not guilty. 4 The two cases were jointly tried.
Thereafter, the court a qou rendered the assailed "Hatol," the dispositive portion of
which reads:
Sapagkat napatunayan nang walang pasubali na nagkasala si
Edgar S. Alojado ng panggagahasa ng dalawang (2) beses, una[,]
kay Julette Pearanda (Crim. Case No. 94-10-705), at pangalawa
kay Gerra Rustia (Crim. Case No. 94-10-706), ang nasabing si
EDGAR S. ALOJADO ay hinatulan ng hukumang ito na
mabilanggo ng "RECLUSION PERPETUA" sa bawat isang kaso.
Gayundin, siya ay hinahatulang magbayad ng tig-[l]ilimampung
[l]ibong [p]iso (P50,000.00) bawat isa sa mga biktimang sina
Julette Pearanda at Gerra Rustia. 5
Hence, this appeal direct to this Court.6 On April 24, 1996, appellant filed a
Motion for New Trial, alleging newly discovered existence. After the Office of the
Solicitor General filed its Comment, this Court denied the motion in its December
3, 1997 Resolution. 7
The Facts
Evidence for Prosecution
In the Appellee's Brief, 8 the Office of the Solicitor General 9 presents the
prosecution's version of, the facts:
On October 11, 1994, Julette Pearanda and Gerra Rustia went
to Amsic Elementary School where they were Grade III pupils.
During the recess at around 10:00 a.m., both girls went to the
house of Julette to get a dress which Julette intended to show to
her teacher. (pp. 11-12, TSN, January 25, 1995). On their way
back to school, appellant talked to them, showed them a picture
of a woman and asked them if they knew the woman in the
picture. Julette told appellant that she did not know the woman.
Appellant told them to help him look for the woman (pp.13-14,
TSN, January 25, 1995). The two girls accompanied appellant
who was then riding a green bicycle. The three of them rode
towards Amsic. In view of an obstruction on the road, appellant
told the girls to go down and walk as they made a turn towards
Plaridel. Thereafter, the two girls rode the bicycle again. This
time it was Julette who stayed at the back while Gerra was
placed at the front of the bicycle.
Upon reaching a grassy area in Plaridel, appellant prandished a
knife, 6 to 7 inches long (TSN, pp. 15-17, January 25, 1995).
Appellant said "Papatayin ko yung babae kasi marami na siyang
kasalanan sa akin." After hearing this, Julette told appellant she
wanted to go home because she was already scared. But
appellant told them to wait.
Appellant tied their hands at their back and tied the left foot of
Julette to one foot of Gerra with Gerra's belt. Appellant also tied
their mouths with Gerra's socks. Appellant made Julette and
Gerra suck his sex organ. (pp. 5-11, TSN, February 22, 1995; pp.
11-12, TSN, March 4, 1995).
Appellant removed the clothes of Julette and raped her by
inserting his penis into her sex organ. (pp. 18-22, TSN, January
25, 199[5]). Appellant knelt down as he raped Julette. Julette
saw blood coming from her sex organ.
Appellant turned to Gerra and spat at her sex organ. He inserted
his penis into the genitalia of Gerra, who was made to lie down.
after appellant raped Gerra, he told the two victims to stay as he
would just rest. (pp. 25-30, TSN, January 25, 1995).
When appellant left, Julette removed the handle of the bag used
to tie her hands and their feet. They stood up and walked toward
the house of Mrs. Stickle, whom they asked for help. When Mrs.
Stickle saw them at the gate of her house, Julette was wearing
her shorts while Gerra was wearing nothing. Mrs. Stickle and the
neighbors brought them to the Angeles City General Hospital.
Dr. Hernand Tulud of the Angeles City Hospital attended to the
victims. He found blood clot on the genital area of Gerra, which
was still bleeding (p. 13, TSN, April 5, 1995). Dr. Tulud found
"laceration [at the] right vaginal wall, left lateral vaginal wall
and periumbilical contusions." (p. 15, Ibid.).
Dr. Tulud also examined the vagina of Julette and found
"multiple laceration[s] of the vagina; [and] positive laceration of
the posterior wall with penetration to the cul de sac." (p.
24, Ibid.). After being given intravenous fluids, she was
transferred to Jose B. Lingad Hospital because she was
complaining of abdominal pains.
Dr. Efren Natino, the obstetrician and volunteer consultant of
Jose Lingad Hospital, examined Julette. He noted [a] laceration
in her genitalia, which was profusely bleeding. Dr. Natino
opined that the laceration could have been caused by an erect
penis. (p. 9, TSN, April 12, 1995).
Appellant was later brought to the hospital where he was
identified by Julette as the person who raped them (pp. 5-11.
TSN, February 22, 1995).
Evidence for the Defense
In, his Brief, 10 appellant assails the insufficiency of the prosecution's evidence and
alleges alibi, claiming that at 11:00 a.m. on October 11, 1994, when the crimes
were committed, he left his house and went to the Day Care Center in Marisol
Village to fetch his youngest son, Carl. The defense also presented Geraldine
Gamboa, who testified that she was near the vicinity of the locus criminis, and that
she saw a man, who was not the appellant, emerge from some bushes with bloody
arms and legs.
Ruling of the Trial Court
The trial court gave full faith and credence to the testimonies of the two victims,
which were corroborated by the medical findings. It also stressed that, considering
the render age of the two minors, it was highly unlikely for them to have fabricated
the rape. The court rejected the defense of alibi which appellant resorted to, since
(1) his house was near the scene of the crime; and (2) he failed to present any
witness to corroborate his claim that, at the time the crimes were committed, he
was at day care center to fetch his son.
Assignment of Errors
In the Appellant's Brief, 11 appellant interposes the following errors allegedly
committed by the lower court:
1. In holding that the victims, Pearanda and
Rustia were raped and not merely sexually
abused[;]
2. In holding that the testimonies of Pearanda
and Rustia and the medical findings sustain the
conclusion that they were raped;
3. In holding that because of the tender age or
minority of the two (2) victims[,] they were
incapable of weaving lies by claiming they
were raped if they were not really raped;
4. In holding that a bladed weapon was used in
the commission of the alleged rape;
5. In holding that the accused was the one who
committed the crime of rape;
 6. In disregarding appellant's evidence that he xxx xxx xxx
was at his residence and not at . . . Plaridel II,
Brgy. Amsic, Angeles City, on October 11, Q: And you said that it was inserted. To what
1994; [and] part of your body was it inserted?

7. In intentionally disregarding defense A: Sa ari ko po.

witness Gamboa's testimony that on October
11, 1994[,] she saw a man in the bushes not far xxx xxx xxx
from the scene of the crime wiping blood on
his hands and feet and was warned to keep
silent and threate[n]ed with death if she Q: When he was able to insert his penis to
disclose[d] what she saw. 12 your private part, what did you feel, if you felt
anything?
In the main, appellant questions the sufficiency and the credibility to the
prosecution's evidence. In resolving this appeal, the Court will also determine the A: Opo.
weight of his alibi and of Defense Witness Gamboa's testimony.
Q: What did you feel?
The Court's Ruling
A: Masakit po.
The appeal is devoid of merit.
xxx xxx xxx
First Issue:
Q: You said that after you were raped, Gerra
Sufficiency of Prosecution Evidence Rustia was next to be raped. How was Gerra
Rustia raped?
Appellant contends that Julette Pearanda and Gerra Rustia were not raped, but
merely sexually abused. In support of his claim, he assails the testimony of Julette A: Pinasok po yun[g] ari ng lalake sa ari ni
that she was raped while lying on her back and appellant was in a kneeling Gerra Rustia.14
position. He submits that "human experience will demonstrate that a man [i]n a
kneeling position cannot possibly insert his penis [into] a girl, or even a woman, Gerra Rustia herself testified that the two of them were raped, as, clearly indicated
who [is i]n a supine position, lying on her back, unless he [lifts] the buttocks of the below:
girl or woman or place[s] himself on top of the girl or woman." 13 He also cites the
testimonies of the two physicians that a hard object other than the male organ Q: Sabi mo noong huling nagbista, sinabi mo
could have penetrated the victims' private parts. na iyong lalakeng umalis ay rapist. Bakit mo
nasabi na ang umalis na lalaki ay rapist?
The contentions of appellant are incorrect. Julette vividly narrated that he inserted
his penis into her private part and, subsequently, into Gerra's viz.: xxx xxx xxx

Q: In what manner did that man brought you A: Kasi po ginahasa kami.
to the grassy area rape or abuse you?
Q: Sabi mo "kami." Sinong kasama mo?
A: Ipinasok po ang ari niya.
 A: Julette, po. and we do not find any to depart from this rule or to make an exemption
therefrom.
xxx xxx xxx
Julette Pearanda statement that appellant was in a kneeling position does not rule
Q: Paano ka at ni Julette ginahasa ng lalaki? out rape. Granting arguendothat appellant's organ did nor completely penetrate the
victim's private part, this Court has consistently held that "for rape to be
A: Pinasok ang titi niya. committed, full penetration is not required. It is enough that there is proof of
entrance of the male organ within the labia or pudendum of the female organ.
Indeed, even the slightest penetration is sufficient to consummate the crime of
Q: Saan niya ipinasok? rape." 17

A: Dito, po.
[witness touching the lower part of her body]
Court: What part of the body?
Interpreter: In between her legs sir.
xxx xxx xxx
Q: Sinabi mo may kasama ka. Anong pangalan
niya?
A: Julette, po.
Q: Sinabi mo siya rin ay ginahasa.
A: Opo.
Q: Sinong unang ginahasa?
A: Si Julette, po. 15
Appellant's conviction hinges on the credibility of the victims and their
testimonies. In this case, the trial court, which had the opportunity to observe the
manner and demeanor of the witnesses, was convinced of their credibilty. We find
no reason to reverse or alter its holding, for "[i]t is a time tested doctrine that a trial
court's assessment of the credibility of a witness is entitled to great weight even
conclusive and binding if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence." 16 The appellant has not given us reason
Citing the findings of the two doctors, appellant stresses the probability that "a
blunt instrument, other than an erect penis," caused the vaginal lacerations of the
two girls. 18 Appellant's reference to these testimonies is erroneous. The two
physicians did state that the lacerations found on the vaginal walls of the victim
could have been caused by a hard object other than an erect male organ, but they
definitely did not rule out the latter cause. Dr. Hernand Tulud testified thus:
PROS. PORNILLOS:
Q: Could you give some objects that could
have caused this laceration?
A: Considering the size of the patient, a blunt
object that could penetrate the vaginal canal,
sir.
Q: Like what?
COURT:
Q: What are those blunt objects you are
referring to?
A: A finger or any instrument that can be
pushed inside the vaginal canal, sir.
Q: What are those blunt objects which you are
referring to which may fall under this
category?
A: An [erect] sexual organ of a male and a
finger, sir. 19
 Identity of Appellant
Established
We are not convinced by appellant's argument that he did not fit the rapist's
physical appearance as described by the two children, who declared that their
assailant was "semi-bald, with moustache, dark with flat nose." It should be
stressed that the descriptions given by the victims are subjective terms, whose
meanings have describe the subjective terms, whose meaning vary with each
individual. The children may have described their assailant as semi-bald, although
he may have had only a wide forehead. The gap between his teeth may have been-
referred to as bungi by some, but not by others. On the other hand, the moustache,
which their assailant allegedly had, can be disregarded because it can easily be
shaved.
We are not persuaded by appellant's allegation that the police conditioned the
minds of the victims to point to appellant as the assailant. In fact, the two children
identified him at the hospital when he was brought before them and again during
the trial. Thus, even when the defense counsel tried to confuse her during cross-
examination, Julette remained steadfast, as shown by her testimony:
Q: When Edgar Alojado was presented to you
if he was the person who abused you, you said
to the policeman 'Hindi iyan, hindi iyan,' is it
not?
A: Tinuro ko po siya.
Q: Is it not true, Miss Pearanda when he was
presented to you, you said "Hindi iyan, hindi
iyan," and he was brought outside the room?
Pros. Pornillos:
Misleading, Your Honor. She said she pointed
to him. 20
On her part, Gerra sufficiently explained why she had failed to immediately
identify appellant at the hospital. She had just awaken and, prior to that, had
undergone blood transfusion. 21 What is important is that when she was asked
again, she promptly tried to be more alert; gathering her senses, she admitted her
mistake and subsequently pointed to appellant as the culprit. She was probably just
being careful not to point to anybody as the culprit, especially when she had not
yet gotten hold of her senses. Instead of destroying her credibility and creating the
impression that she was coaxed by the police, the foregoing circumstances show
her conscious awareness that appellant was the man who had abused her and
Julette. Thus, during the trial, she again identified him. Indeed, the natural reaction
of a victim is to point to the guilty party, for to inculpate the wrong person is to let
the malefactor go unpunished and free to repeat the same outrage.
We are not persuaded by the argument that the first time appellant was identified
was not in a police lineup, but in the hospital where the police brought him alone
to face the two victims. The fact remains that the victims were able to recognize
him at the time and again during the trial. Moreover, there is no law that requires a
police lineup as the only means by which culprits may be identified. 22
Use of a Knife
Appellant also contends that the "court a quo erred in holding that a bladed
weapon was used in the commission of the alleged rape." 23 This contention is
utterly devoid of merit. First, the trial court itself did not rule that rape was
committed with the use of a deadly weapon. This is clear from its finding that
"batay sa ebidensya o salaysay ni Julette Penaranda, ang panggagahasa ay hindi
ginamitan ng nakamamatay na sandata." 24
Second, evidence of force or intimidation is not material in this case, because the
appellant was charged with statutory rape, which is established upon proof that the
accused had carnal knowledge of a girl below twelve years of age. In this case, the
prosecution proved that, on October 11, 1994, appellant raped Julette G. Pearanda
and Gerra Q. Rustia, born on December 11, 1985, 25 and December 15,
1984, 26 respectively.
Irregularity of Arrest
Deemed Waived
Appellant also maintains that he was illegally arrested. This argument, however,
comes too late in the day, because appellant failed to allege it prior to his
arraignment. In People v. Salvatierra, 27 the Court emphasized that an objection to
the legality of an arrest must be submitted to the trial court before the accused
enters his plea., viz.:
Appellant is estopped from questioning the legality of his arrest
considering that he never raised this before entering his plea.
Any objection involving a warrant of arrest or the acquisition of
 jurisdiction over the person of an accused must be made before
he enters his plea, otherwise the objection is deemed waived.
Consequently, any defect concerning the arrest of the appellant was cured by his
voluntary submission to the jurisdiction of the trial court, as shown when he
entered his plea during his arraignment, and when he actively participated in the
trial thereafter.
Second Issue:
Alibi
The defense of alibi must rejected, because appellant failed to prove that his
presence at the place of the crime at the time it was committed was physically
impossible. 28 Appellant allegedly left his residence to fetch his son Carl at the day
care center in Marisol Village. However, the distance between Marisol and
the locus criminis did not discount his presence at scene of the crime at the time.
Moreover, his, testimony that he saw SPO2 Soriano on his way back is not
"crucial" 29 as he claims. The police officer merely admitted that he knew
appellant, not that he saw appellant going to or coming from the day care center. In
any event, the latter's defense of alibi cannot overcome the positive identification
made by the two victims, who had no improper motive to testify falsely against
him. In several instances, the Court has held:
On appellants' defense of alibi and denial, it will suffice to say
that said defenses cannot prevail over their positive
identification by the eyewitnesses who had no improper motive
to falsely testify against them as we have mentioned above.
Besides, there is no evidence to show that the alleged
whereabouts of the [appellant] at the time of the killing [was] far
enough to forfeit the possibility of [his] being at the scene of the
crime. 30
Third Issue:
Geraldine Gamboa's Testimony
Appellant claims that the lower court erred in disregarding Geraldine Gamboa's
testimony that she saw a bloodied man who emerged from some bushes not far
from the scene of the crime, and who threatened her to keep silent on what she had
seen. She allegedly saw the same man on three more separate occasions once
while he was drinking softdrinks across her house, and twice when he rang her
doorbell and reminded her to maintain her silence. That man, appellant submits,
was the culprit.
We disagree. The lower court correctly stated that Gamboa's testimony was
contrary to human experience, since it was quite improbable that she would let a
man inside her abode when he had just threatened to kill her. More important, even
if she did see a man other than appellant emerge from some nearby bushes, she did
nor see the commission of the rape. In other words, the defense fails to establish
that the man and the malefactor were one and the same.
In any event, Gamboa's testimony cannot overcome the positive identification
made by the two victims. The trial court, which had the opportunity to observe
them during trial, deemed their testimony credible and rejected Gamboa's.
Crime and Punishment
The evidence presented by the prosecution clearly showed that appellant had
carnal knowledge of the two victims, who at the time were less than twelve years
of age. Thus, he is liable for statutory rape, which is punishable with reclusion
perpetua to death. 31 There being no aggravating circumstance, the penalty
of reclusion perpetua for each count of rape, which the trial court imposed, is
correct. We affirm the award of P50,000 as indemnity ex delicto for each
victim, 32 and consistent with jurisprudence, 33 we also grant P50,000 to each of
the victims as moral damages.
WHEREFORE, the assailed Decision is hereby AFFIRMED with the
MODIFICATION that the appellant is additionally ORDERED to pay P50,000 to
each of the two victims as moral damages. Cost against appellant.
SO ORDERED.
Romero, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 125687 December 9, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DELFIN RONDERO, accused-appellant.
PER CURIAM:
When an accused appeals from the judgment of the trial court, he waives the
constitutional safeguard against double jeopardy and throws the whole case open
for review of the appellate court, which is then called to render such judgment as
law and justice dictate, whether favorable or unfavorable. 1 With this precept in
mind, this Court as the ultimate dispenser of justice, will not hesitate to render the
proper imposable penalty, whenever it sees fit, even the supreme penalty of death.
Before us is an appeal from a decision rendered by the Regional Trial Court of
Dagupan City, Branch 41, sentencing herein accused-appellant Delfin Rondero y
Sigua to suffer the penalty of reclusion perpetua for the crime of homicide.
The facts of the case are as follows:
On the evening of March 25, 1994, Mardy Doria came home late from a barrio
fiesta. When he noticed that his nine year old sister, Mylene, was not around, he
woke up his parents to inquire about his sister's whereabouts. Realizing that
Mylene was missing, their father, Maximo Doria, sought the help of a neighbor,
Barangay Kagawad Andong Rondero to search for Mylene. Maximo and Andong
went to the house of a Barangay Captain to ask for assistance and also requested
their other neighbors in Pugaro, Dagupan to look for Mylene.
The group began searching for Mylene at around 1:00 o'clock in the morning of
March 26, 1994. They scoured the campus of Pugaro Elementary School and the
seashore in vain. They even returned to the school and inspected every classroom
but to no avail. Tired and distraught, Maximo started on his way home. When he
was about five (5) meters away from his house, Maximo, who was then carrying a
flashlight, saw herein accused-appellant Delfin Rondero pumping the artesian well
about one (1) meter away. Accused-appellant had an ice pick clenched in his
mouth and was washing his bloodied hands. 2
Maximo hastily returned to the school and told Kagawad Andong what he saw
without, however, revealing that the person he saw was the latter's own
son. 3 Maximo and Andong continued their search for Mylene but after failing to
find her, the two men decided to go home. After some time, a restless Maximo
began to search anew for her daughter. He again sought the help of Andong and
the barangay secretary. The group returned to Pugaro Elementary School where
they found Mylene's lifeless body lying on a cemented pavement near the
canteen. 4 Her right hand was raised above her head, which was severely bashed,
and her fractured left hand was behind her back. She was naked from the waist
down and had several contusions and abrasions on different parts of her body.
Tightly gripped in her right hand were some hair strands. A blue rubber slipper
with a tiny leaf painted in red was found beside her body while the other slipper
was found behind her back.
Half an hour later, five (5) policemen arrived at the scene and conducted a spot
investigation. They found a pair of shorts 5 under Mylene's buttocks, which
Maximo identified as hers. Thereafter, Maximo led the policemen to the artesian
well where he had seen accused-appellant earlier washing his hands. The
policemen found that the artesian well was spattered with blood. 6 After the
investigation, the policemen, together with Maximo, went back to their
headquarters in Dagupan City. There, Maximo disclosed that before they found
Mylene's body, he saw accused-appellant washing his bloodstained hands at the
artesian well. 7 Acting on this lead, the policemen returned to Pugaro and arrested
accused-appellant.
An autopsy of the body of the victim conducted by the Assistant City Health
Officer of Dagupan City, Dr. Tomas G. Cornel, revealed the following injuries:
EXTERNAL FINDINGS
1. Contusion hematoma, anterior chest wall,
along the midclavicular line, level of the 2nd
intercostal space, right.
2. Contusion hematoma, along the parasternal
line, level of the 1st intercostal space, left.
3. Contusion hematoma, posterior aspect,
shoulder, left.
4. Contusion hematoma, anterior axillary line,
level of the 3rd intercostal space, left.
5. Contusion hematoma, anterior aspect, neck.
6. Contusion hematoma, lower jaw, mid
portion.
 7. Contusion hematoma, periorbital, right.
8. Lacerated wound, 1" x 1/2" x 1/2",
maxillary area, right.
9. Contusion hematoma, temporal area, left.
10. Contusion hematoma, mid frontal area.
11. Lacerated wound 1/2" x 1/4" x 1/4", frontal
area, left.
12. Contusion hematoma, occipital area, right.
13. Abrasion, medial anterior aspect, elbow,
left.
14. Abrasion, lateral aspect, buttock, right.
15. Abrasion, antero lateral aspect, iliac crest,
right.
16. Contusion hematoma, upper lip.
17. Avulsion, upper central and lateral
incisors.
18. Fresh laceration of the hymen at 1:00
o'clock, 6:00 o'clock and 9:00 o'clock position.
Fresh laceration of the labia minora at 6:00
o'clock and 9:00 o'clock position.
INTERNAL FINDINGS
Massive intracranial hemorrhage with brain tissue injury.
Fracture of the right occipital bone.
Note:
Vaginal smear was done at the Gov. Teofilo Sison Memorial
Prov'l Hosp. laboratory and the result showed no sperm cell
seen. (March 26, 1994)
Cause of death: Cardio Respiratory Arrest
Due to: Massive Intracranial Hemorrhage Traumatic 8
For Mylene's burial, her parents spent P5,043.00 during her wake, 9 P9,000.00 for
funeral expenses 10 and P850.00 for church services and entombment. 11
On March 28, 1994, the hair strands which were found on the victim's right hand
and at the scene of the crime, together with hair specimens taken from the victim
and accused-appellant, were sent to the National Bureau of Investigation (NBI) for
laboratory examination. 12
Meanwhile, on March 30, 1994, accused-appellant was formally charged with the
special complex crime of rape with homicide in an information which reads:
The undersigned 4th Assistant City Prosecutor accuses DELFIN
RONDERO y Sigua, of Pugaro District, Dagupan City, of the
crime of RAPE WITH HOMICIDE, committed as follows:
That on or about the 26th day of March, 1994,
in the city of Dagupan, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused DELFIN RONDERO y
Sigua, did then and there, wilfully, unlawfully,
criminally and forcibly have carnal knowledge
with one MYLENE J. DORIA, a 9-year old
girl, against her will and consent, and
thereafter, with intent to kill, criminally and
unlawfully employed violence against her
person, thereby causing the death of said
MYLENE J. DORIA, as evidenced by the
Autopsy Report issued by Dr. Tomas G.
Cornel, Asst. City Health Officer, this city, to
the damage and prejudice of the legal heirs of
said deceased, MYLENE J. DORIA in the
amount of not less than FIFTY THOUSAND
PESOS (P50,000.00), Philippine currency, and
other consequential damages.
Contrary to Article 335 in relation to Article 249 of the Revised
Penal Code.
Accused-appellant pleaded not guilty at his arraignment. In the meantime, the NBI
sent a fax message to the Dagupan City Police Station saying that it could not
conduct an examination on the hair strands because the proper comparative
specimens were not given. The NBI suggested that hair strands be pulled, not cut,
from the suspect and from the victim on the four regions of their heads so that all
parts of the hair strands, from root to tip, may be presented. 13 Thereupon, accused-
appellant, who executed a "waiver of detention" including a waiver of the
provisions of Section 12, Article III of the Constitution on the rights of the accused
during custodial investigation, 14was allegedly convinced by a certain Major
Wendy Ocampo to give sample hair strands. Another police officer went to the
Doria's residence to get hair samples from Mylene, who had not yet been interred.
The hair strands taken from accused-appellant and the victim were later indorsed
to the NBI for laboratory testing. 15 Comparative micro-physical examination on
the specimens showed that the hair strands found on the right hand of the victim
had similar characteristics to those of accused-appellant's, while the hair specimen
taken from the crime scene showed similar characteristics to those of the
victim's. 16 Alicia P. Liberato, the NBI Senior Forensic Chemist who conducted the
microscopic examination on the hair samples, later reiterated the aforesaid findings
in court. 17
At the trial, Dr. Cornel, the physician who conducted the autopsy on Mylene at
around 9:30 o'clock in the morning of March 26, 1994, testified that the victim's
death probably occurred before 11:00 o'clock in the evening of March 25, 1994
judging from the rigidity of her lower and upper extremities. He explained that the
contusions and hematoma found on Mylene's body were possibly caused by a
blunt instrument, a clenched fist or a piece of wood. 18 The lacerated wounds on
her face may have been caused by a bladed instrument, not necessarily sharp, or by
hitting her head on a concrete wall with jagged edges. The abrasions on her elbow,
right buttock and upper hip may have been caused by a rough object that came in
contact with her skin. 19 Dr. Cornel also explained that the victim's upper and
lateral incisors may have been avulsed by a sudden blow in the mouth using a
blunt instrument, stone or wood. He added that the fresh hymenal lacerations at
1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions and the fresh laceration of the
labia minora at 6:00 o'clock and 9:00 o'clock positions could have been caused
either by sexual intercourse or by an object forcibly inserted in Mylene's vagina. 20
Accused-appellant resolved not to testify at the trial, opting instead to present his
wife and his father as witnesses to account for his whereabouts on the night of the
gruesome incident.
Christine Gonzales, wife of accused-appellant, testified that on March 25, 1994, at
around 7:00 o'clock in the evening, she had a quarrel with her husband. Accused-
appellant was then slightly drunk and apparently irked when supper was not yet
ready. He slapped his wife and shouted invectives at her, causing a disturbance in
the neighborhood and prompting his father, who lived just a house away, to
intervene. When accused-appellant refused to be pacified, his father hit him in the
nose, mouth and different parts of the body. 21 His father left accused-appellant
profusely bleeding. Accused-appellant then changed his blood-stained clothes and
went to bed with his wife. It was a little after 8:00 o'clock in the evening.
Christine woke up the next day at around 7:00 o'clock in the morning. She washed
some clothes including the blood-stained ones her husband wore the night before.
After doing the laundry, she went out to pay her father a visit. On her way back
home, Christine was informed by a child that her husband was arrested by the
police. Christine rushed home and found some policemen taking the newly washed
undershirt and short pants of accused-appellant from the clothesline. The
policemen brought Christine with them to the police headquarters for questioning.
When asked about the blood on her husband's clothes, Christine told them about
their quarrel the night before. 22
Accused-appellant's father, Leonardo Rondero, corroborated Christine's story. He
testified that on the night in question, at around 7:00 o'clock in the evening, he was
resting at home, located only a house away from his son's, when he heard the latter
having a heated discussion with Christine. Embarrassed at the scene that his son
was creating at such an hour, Leonardo went to the couple's house to pacify the
slightly inebriated accused-appellant. Accused-appellant ignored his father and
continued shouting at his wife. Leonardo then hit him several times causing his
nose and mouth to bleed profusely that it stained his sando and short pants.
Startled at the injuries that his son sustained, Leonardo went home. Early the next
morning, March 26, 1994, at around 1:30 o'clock, Leonardo was awakened by his
neighbor, Maximo Doria, who sought his assistance to search for his missing nine-
year old daughter Mylene. Leonardo willingly obliged. Thus, Maximo, Leonardo
and the barangay secretary searched the nearby houses for hours but failed to find
Mylene. 23
On October 13, 1995, the trial court rendered judgment 24 convicting accused-
appellant of the crime of murder and sentencing him to death. The dispositive
portion of the decision reads:
WHEREFORE:
For the crime you had wilfully and deliberately committed, this
court finds you guilty beyond reasonable doubt of the crime of
murder defined and punished by Section 6 of Republic Act No.
7659, in relation to Article 248 of the Revised Penal Code,
together with all its attendant aggravating circumstances without
any mitigating circumstance of whatever nature.
 You, Delfin Rondero, are hereby therefore sentenced to die by AND ILLEGAL DETENTION OF
electrocution pursuant to Article 81 of Republic Act No. 7659, ACCUSED-APPELLANT. 27
for your heinous crime as charged in the information as a
punishment and as an example to future offenders. The appeal has no merit.

You are hereby further ordered to indemnify the heirs of the
victim by paying to them an amount of P60,000.00 for the loss
of life of Mylene J. Doria; P15,000.00 for consequential
damages and P100,000.00 as moral damages.
May God have mercy on your soul.
SO ORDERED. 25
Accused-appellant moved for reconsideration. On November 10, 1995, the trial
court issued an order modifying its earlier decision, convicting accused-appellant
of the crime of homicide and sentencing him to suffer the penalty of reclusion
perpetua instead, on the ground that under Section 10 of Republic Act. No. 7610,
otherwise known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act," the penalty for homicide is reclusion
perpetua when the victim is under twelve (12) years of age. 26
Accused-appellant argues that the circumstantial evidence presented by the
prosecution is not strong enough to sustain his conviction, asserting that Maximo
Doria's testimony that he saw him about a meter away washing his bloodied hands
at an artesian well was highly improbable inasmuch as it was dark at that time.
Accused-appellant also considered it strange that when Maximo saw him, he did
not bother to ask if he had seen Mylene. Finally, accused-appellant alleges that the
slippers presented in court as evidence are not the same ones which were
recovered at the scene of the crime since the pictures presented in court did not
show the leaf painted in red on the left slipper.
Sec. 4, Rule 133 of the Revised Rules of Court provides:
Sec. 4. Circumstantial evidence, when sufficient.
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstances;

In this appeal, accused-appellant raises the following assignment of errors:
I. THE LOWER COURT ERRED IN
FINDING ACCUSED-APPELLANT
GUILTY OF THE CRIME OF MURDER
AMENDED TO HOMICIDE AND
SENTENCING HIM TO SUFFER LIFE
IMPRISONMENT (sic) AND TO
INDEMNIFY THE AGGRIEVED PARTY IN
THE AMOUNT OF P175,000.00 BASED
ONLY ON CIRCUMSTANTIAL
EVIDENCE.
II. THE LOWER COURT COMMITTED
GRAVE ERROR IN CONVICTING THE
ACCUSED OF HOMICIDE.
III. THE LOWER COURT COMMITTED
GRAVE ERROR IN FINDING ACCUSED
GUILTY TO (sic) THE CRIME OF
HOMICIDE DESPITE ILLEGAL ARREST
(b) The facts from which the inferences are
derived are proven; and
(c) The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.
Circumstantial evidence is that evidence which proves a fact or series of facts from
which the facts in issue may be established by inference. 28 Such evidence is
founded on experience and observed facts and coincidences establishing a
connection between the known and proven facts and the facts sought to be
proved. 29 Circumstantial evidence is sufficient for conviction in criminal cases
when there is more than one circumstance, derived from facts duly given and the
combination of all is such as to produce conviction beyond reasonable doubt. The
test for accepting circumstantial evidence as proof of guilt beyond reasonable
doubt is: the series of circumstances duly proved must be consistent with each
other and that each and every circumstance must be consistent with the accused's
guilt and inconsistent with his innocence.
In the case at bar, the prosecution avers that there are several circumstances
availing which, when pieced together, point to accused-appellant as the author of
the gruesome crime committed on the night of March 25, 1994, to wit:
1. A few hours after the victim's probable time
of death, Maximo saw accused-appellant, with
an ice pick clenched in his mouth, washing his
bloodied hands at an artesian well. 30
2 A pair of slippers which Maximo identified
as belonging to accused-appellant was found at
the scene of the crime. One was found beside
the victim's body while the other was under
her buttocks. 31 Maximo positively pointed to
accused-appellant as the owner of the pair of
slippers because of a distinguishing mark of
the painting of a red leaf on the left slipper.
Maximo said accused-appellant used to
frequent their house wearing the same pair of
slippers for over a year. 32
3. The hair strands which were found on
Mylene's right hand and the hair strands taken
from accused-appellant were shown to have
similar characteristics when subjected to
microscopic
examination. 33
4. Accused-appellant's undershirt and short
pants which he wore on the night of March 25,
1994 had bloodstains. His wife admitted
having washed the undershirt and short pants
in the early morning of March 26, 1994. 34
Contrary to the allegations of accused-appellant, the evidence presented by the
prosecution is sufficient to sustain his conviction. Maximo stated on the witness
stand that he was able to identify accused-appellant because he focused his
flashlight on him while he was washing his bloodstained hands at an artesian well
located only a meter away from where Maximo was standing. 35 Maximo
considered it wise not to talk to accused-appellant because at that time he had an
ice pick clenched in his mouth and looked slightly drunk. As to the allegation that
the slippers presented in court were not the same ones recovered at the scene of the
crime, suffice it to say that the photographs taken of the crime scene were not
focused only on the pair of slippers; hence, the red leaf may be too minuscule to be
noticed. In any case, the pair of slippers shown in the photographs corroborate the
testimony of the prosecution's witnesses that a pair of rubber slippers were indeed
recovered at the scene.
It might not be amiss to note that Maximo was not shown to have had any motive
to impute so grave a wrong on accused-appellant. Prior to the incident, accused-
appellant used to frequent Maximo's house for a visit. 36 On the night of the
incident, Maximo even sought the help of accused-appellant's father to search for
Mylene.
On the other hand, the testimonies of the witnesses for the defense are incredulous,
to say the least. Leonardo Rondero, accused-appellant's father, testified that he
mauled his son in an effort to pacify him during a heated altercation with his wife,
Christine. Leonardo said that he felt embarrassed because his son was shouting
invectives at Christine and was causing a scene in the neighborhood so he hit the
accused-appellant several times. Leonardo's curious way of pacifying his son
resulted in bodily injuries on the latter. Strangely, despite his sustained injuries and
profuse bleeding, accused-appellant and his wife just went to sleep after Leonardo
left. 37 We find it unnatural that a father, a barangay kagawad, would repeatedly hit
his son in an effort to pacify him in the middle of a marital spat. We find it even
more unnatural that one who was bleeding profusely would act so insouciant as to
just go to sleep without attending to his injuries.
Accused-appellant alleges that while in the custody of police officers, some hair
strands were taken from him without his consent and submitted to the NBI for
investigation, in violation of his right against self incrimination. Aside from
executing a waiver of the provisions of Article 125 of the Revised Penal Code,
accused-appellant executed a waiver of the provisions of Article III, Section 12 of
the Constitution regarding the rights of an accused during custodial
investigation. 38 It appears, however, that the waivers were executed by the
accused without the assistance of a counsel of his own choice.
The use of evidence against the accused obtained by virtue of his testimony or
admission without the assistance of counsel while under custodial investigation is
proscribed under Sections 12 and 17, Article III of the Constitution, to wit:
Sec. 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
 (2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission in violation of this or Section
17 hereof shall be inadmissible in evidence against him.
xxx xxx xxx
Sec. 17. No person shall he compelled to be a witness against
himself.
The aforesaid rules are set forth in the Constitution as a recognition of the fact that
the psychological if not physical atmosphere of custodial investigations in the
absence of procedural safeguards is inherently coercive in nature. However, to
paraphrase Justice Sanchez in the case of Chavez vs. Court of
Appeals, 39 "Compulsion does not necessarily connote the use of violence; it may
be the product of unintentional statements. Pressure which operates to overbear his
will, disable him from making a free and rational choice or impair his capacity for
making rational judgment would be sufficient. So is moral coercion tending to
force testimony from the unwilling lips of the defendant." Needless to say, the
above-mentioned provisions are an affirmation that "coercion can be mental as
well as physical and that the blood of the accused is not the only hallmark of an
unconstitutional inquisition." 40
It bears emphasis, however, that under the above-quoted provisions, what is
actually proscribed is the use of physical or moral compulsion to extort
communication from the accused-appellant and not the inclusion of his body in
evidence when it may be material. For instance, substance emitted from the body
of the accused may be received as evidence in prosecution for acts of
lasciviousness 41 and morphine forced out of the mouth of the accused may also be
used as evidence against him. 42 Consequently, although accused-appellant insists
that hair samples were forcibly taken from him and submitted to the NBI for
forensic examination, the hair samples may be admitted in evidence against him,
for what is proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under duress.
On the other hand, the blood-stained undershirt and short pants taken from the
accused are inadmissible in evidence. They were taken without the proper search
warrant from the police officers. Accused-appellant's wife testified that the police
officers, after arresting her husband in their house, took the garments from the
clothesline without proper authority. 43 This was never rebutted by the prosecution.
Under the libertarian exclusionary rule known as the "fruit of the poisonous tree,"
evidence illegally obtained by the state should not be used to gain other evidence
because the illegally obtained evidence taints all evidence subsequently obtained.
Simply put, accused-appellant's garments, having been seized in violation of his
constitutional right against illegal searches and seizure, are inadmissible in court as
evidence.
Nevertheless, even without the admission of the bloodied garments of the accused
as corroborative evidence, the circumstances obtaining against accused-appellant
are sufficient to establish his guilt.
Having disposed of the foregoing, we now come to the issue of whether accused-
appellant should be convicted of the special complex crime of rape with homicide.
It is a jurisprudential rule that an appeal throws a whole case to review and it
becomes the duty of the appellate court to correct such error as may be found in
the judgment appealed from whether they are made the subject of assigned errors
or not. 44
The trial court dismissed the charge of rape holding that it has not been adequately
proven due to the absence of spermatozoa in the victim's private part. It is well
settled that the absence of spermatozoa in the victim's private part does not negate
the commission of rape for the simple reason that the mere touching of the
pudenda by the male organ is already considered as consummated rape. Mylene
Doria was naked from waist down when she was found. Her private organ had
hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions. There
were fresh lacerations in the labia minora at 6:00 o'clock and 9:00 o'clock
positions as well. The trial judge even noted that "it can be conclusively deduced
that her sex organ was subjected to a humiliating punishment." While the
examining physician speculated that the lacerations could have been caused by a
piece of wood or rounded object, he did not rule out the possibility of forcible
sexual intercourse.
The presence of physical injuries on the victim strongly indicates the employment
of force on her person. Contusion was found on Mylene's face, arms and thighs. In
rape cases, when a woman is forcibly made to lie down, she will utilize her elbow
as the fulcrum so that abrasions will be observed. In an attempt to stand, the victim
will flex her neck forward. The offender will then push her head backwards,
causing hematoma at the region of the occiput. To prevent penetration of the male
organ, she will try to flex her thighs and the offender will give a strong blow to the
inner aspects of both thighs so that the victim will be compelled to straighten
them. 45
As aptly observed by the Solicitor General, aside from the hymenal lacerations, the
examining physician testified that Mylene sustained abrasions on her left elbow,
right buttock and right upper hip and contusion hematoma at the occipital area, i.e.,
back part of the head, right side. 46 Indeed, the physical evidence indubitably tells a
harrowing crime committed against nine-year old Mylene Doria in a manner that
no words can sufficiently describe.
Anent accused-appellant's third assignment of error, it might be true that accused-
appellant's warrantless arrest was not lawful. The police officers who arrested him
had no personal knowledge of facts indicating that he was the perpetrator of the
crime just committed. His warrantless arrest was not based on a personal
knowledge of the police officers indicating facts that he has committed the
gruesome crime but solely on Maximo's suspicion that he was involved in the
slaying of Mylene since he was seen washing his bloodied hands in the early
morning of March 26, 1994. 47 Nevertheless, it is hornbook knowledge that any
irregularity attending the arrest of an accused is deemed waived when, instead of
quashing the information for lack of jurisdiction over his person, the accused
voluntarily submits himself to the court by entering a plea of guilty or not guilty
during the arraignment and participating in the proceedings.
of the crime of homicide is MODIFIED. Accused-appellant Delfin Rondero y
Sigua is found guilty beyond reasonable doubt of the charge of special complex
crime of rape with homicide committed against Mylene J. Doria and is accordingly
sentenced to suffer the supreme penalty of DEATH. He is also ordered to pay the
heirs of the victim the sum of P75,000.00 by way of civil indemnity, P50,000.00
as moral damages and P15,000.00 as consequential damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of
the Revised Penal Code, upon finality of this decision, let the records of this case
be forwarded to the Office of the President for possible exercise of pardoning
power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ., concur.

Finally, we reiterate that when an accused appeals from the sentence of the trial Republic of the Philippines
court, he waives the constitutional safeguard against double jeopardy and throws
SUPREME COURT
the whole case open to the review of the appellate court, which is then called to
Manila
render judgment as the law and justice dictate, whether favorable or unfavorable,
and whether they are made the subject of assigned errors or not. This precept
should be borne in mind by every lawyer of an accused who unwittingly takes the SECOND DIVISION
risk involved when he decides to appeal his sentence.
G.R. No. 186529 August 3, 2010
Accused-appellant's guilt having been established beyond reasonable doubt for the
rape and brutal slaying of Mylene Doria, this Court has no other recourse but to PEOPLE OF THE PHILIPPINES, Appellee,
impose the penalty of death upon accused-appellant Delfin Rondero y Sigua. vs.
Under Article 335 of the Revised Penal Code, as amended by Republic Act No. JACK RACHO y RAQUERO, Appellant.
7659, "when by reason or on occasion of the rape, a homicide is committed, the
penalty shall be death." At this juncture, it should be stated that four justices of the DECISION
court have continued to maintain the unconstitutionality of R.A. No. 7659 insofar
as it prescribes the death penalty; nevertheless, they submit to the ruling of the NACHURA, J.:
majority to the effect that this law is constitutional and that the death penalty can
be lawfully imposed in the case at bar.
On appeal is the Court of Appeals (CA) Decision1 dated May 22, 2008 in CA-G.R.
CR-H.C. No. 00425 affirming the Regional Trial Court2 (RTC) Joint
The award of P50,000.00 as indemnity to the heirs of the victim is increased to Decision3 dated July 8, 2004 finding appellant Jack Racho y Raquero guilty
P75,000.00 in line with our ruling in People vs. Mahinay. 48 The award of moral beyond reasonable doubt of Violation of Section 5, Article II of Republic Act
damages in the sum of P100,000.00 is reduced to P50,000.00. Further, accused- (R.A.) No. 9165.
appellant is ordered to pay the sum of P15,000.00 as consequential damages.
The case stemmed from the following facts:
WHEREFORE, the decision of the Regional Trial Court, Branch 41, Dagupan City
finding accused-appellant Delfin Rondero y Sigua guilty beyond reasonable doubt
On May 19, 2003, a confidential agent of the police transacted through cellular
phone with appellant for the purchase of shabu. The agent later reported the
transaction to the police authorities who immediately formed a team composed of
member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence
group of the Philippine Army and the local police force to apprehend the
appellant.4 The agent gave the police appellants name, together with his physical
description. He also assured them that appellant would arrive in Baler, Aurora the
following day.
On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him
that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime of
the day wearing a red and white striped T-shirt. The team members then posted
themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of
the same day, a Genesis bus arrived in Baler. When appellant alighted from the
bus, the confidential agent pointed to him as the person he transacted with earlier.
Having alighted from the bus, appellant stood near the highway and waited for a
tricycle that would bring him to his final destination. As appellant was about to
board a tricycle, the team approached him and invited him to the police station on
suspicion of carrying shabu. Appellant immediately denied the accusation, but as
he pulled out his hands from his pants pocket, a white envelope slipped therefrom
which, when opened, yielded a small sachet containing the suspected drug. 5
The team then brought appellant to the police station for investigation. The
confiscated specimen was turned over to Police Inspector Rogelio Sarenas De
Vera who marked it with his initials and with appellants name. The field test and
laboratory examinations on the contents of the confiscated sachet yielded positive
results for methamphetamine hydrochloride.6
Appellant was charged in two separate Informations, one for violation of Section 5
of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the
same law for possessing, dangerous drugs, the accusatory portions of which read:
"That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler,
Aurora and within the jurisdiction of this Honorable Court, the said accused, did
then and there, unlawfully, feloniously and willfully have in his possession five
point zero one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride
commonly known as "Shabu", a regulated drug without any permit or license from
the proper authorities to possess the same.
CONTRARY TO LAW."7
"That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler,
Aurora, the said accused did then and there, unlawfully, feloniously and willfully
transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu without
any permit or license from the proper authorities to transport the same.
CONTRARY TO LAW."8
During the arraignment, appellant pleaded "Not Guilty" to both charges.
At the trial, appellant denied liability and claimed that he went to Baler, Aurora to
visit his brother to inform him about their ailing father. He maintained that the
charges against him were false and that no shabu was taken from him. As to the
circumstances of his arrest, he explained that the police officers, through their van,
blocked the tricycle he was riding in; forced him to alight; brought him to Sea
Breeze Lodge; stripped his clothes and underwear; then brought him to the police
station for investigation.9
On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of
Violation of Section 5, Article II, R.A. 9165 and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of 500,000.00; but acquitted him
of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA
affirmed the RTC decision.11
Hence, the present appeal.
In his brief,12 appellant attacks the credibility of the witnesses for the prosecution.
He likewise avers that the prosecution failed to establish the identity of the
confiscated drug because of the teams failure to mark the specimen immediately
after seizure. In his supplemental brief, appellant assails, for the first time, the
legality of his arrest and the validity of the subsequent warrantless search. He
questions the admissibility of the confiscated sachet on the ground that it was the
fruit of the poisonous tree.
The appeal is meritorious.
We have repeatedly held that the trial courts evaluation of the credibility of
witnesses and their testimonies is entitled to great respect and will not be disturbed
on appeal. However, this is not a hard and fast rule. We have reviewed such
factual findings when there is a showing that the trial judge overlooked,
misunderstood, or misapplied some fact or circumstance of weight and substance
that would have affected the case.13
Appellant focuses his appeal on the validity of his arrest and the search and seizure
of the sachet of shabu and, consequently, the admissibility of the sachet. It is
noteworthy that although the circumstances of his arrest were briefly discussed by
the RTC, the validity of the arrest and search and the admissibility of the evidence
against appellant were not squarely raised by the latter and thus, were not ruled
upon by the trial and appellate courts.
It is well-settled that an appeal in a criminal case opens the whole case for
review.1avvphi1 This Court is clothed with ample authority to review matters,
even those not raised on appeal, if we find them necessary in arriving at a just
disposition of the case. Every circumstance in favor of the accused shall be
considered. This is in keeping with the constitutional mandate that every accused
shall be presumed innocent unless his guilt is proven beyond reasonable doubt.14
After a thorough review of the records of the case and for reasons that will be
discussed below, we find that appellant can no longer question the validity of his
arrest, but the sachet of shabu seized from him during the warrantless search is
inadmissible in evidence against him.
The records show that appellant never objected to the irregularity of his arrest
before his arraignment. In fact, this is the first time that he raises the issue.
Considering this lapse, coupled with his active participation in the trial of the case,
we must abide with jurisprudence which dictates that appellant, having voluntarily
submitted to the jurisdiction of the trial court, is deemed to have waived his right
to question the validity of his arrest, thus curing whatever defect may have
attended his arrest. The legality of the arrest affects only the jurisdiction of the
court over his person. Appellants warrantless arrest therefore cannot, in itself, be
the basis of his acquittal. 15
As to the admissibility of the seized drug in evidence, it is necessary for us to
ascertain whether or not the search which yielded the alleged contraband was
lawful.16
The 1987 Constitution states that a search and consequent seizure must be carried
out with a judicial warrant; otherwise, it becomes unreasonable and any evidence
obtained therefrom shall be inadmissible for any purpose in any proceeding. 17 Said
proscription, however, admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in "plain view;"
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.18
What constitutes a reasonable or unreasonable warrantless search or seizure is
purely a judicial question, determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the presence or absence of
probable cause, the manner in which the search and seizure was made, the place or
thing searched, and the character of the articles procured.19
The RTC concluded that appellant was caught in flagrante delicto, declaring that
he was caught in the act of actually committing a crime or attempting to commit a
crime in the presence of the apprehending officers as he arrived in Baler, Aurora
bringing with him a sachet of shabu.20 Consequently, the warrantless search was
considered valid as it was deemed an incident to the lawful arrest.
Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest
must precede the search; generally, the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset of the search. 21 Thus,
given the factual milieu of the case, we have to determine whether the police
officers had probable cause to arrest appellant. Although probable cause eludes
exact and concrete definition, it ordinarily signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant
a cautious man to believe that the person accused is guilty of the offense with
which he is charged.22
The determination of the existence or absence of probable cause necessitates a
reexamination of the established facts. On May 19, 2003, a confidential agent of
the police transacted through cellular phone with appellant for the purchase of
shabu. The agent reported the transaction to the police authorities who
immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00
a.m., appellant called up the agent with the information that he was on board a
Genesis bus and would arrive in Baler, Aurora anytime of the day wearing a red
and white striped T-shirt. The team members posted themselves along the national
highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus
arrived in Baler. When appellant alighted from the bus, the confidential agent
pointed to him as the person he transacted with, and when the latter was about to
board a tricycle, the team approached him and invited him to the police station as
he was suspected of carrying shabu. When he pulled out his hands from his pants
pocket, a white envelope slipped therefrom which, when opened, yielded a small
sachet containing the suspected drug.23 The team then brought appellant to the
police station for investigation and the confiscated specimen was marked in the
presence of appellant. The field test and laboratory examinations on the contents of
the confiscated sachet yielded positive results for methamphetamine
hydrochloride.
Clearly, what prompted the police to apprehend appellant, even without a warrant,
was the tip given by the informant that appellant would arrive in Baler, Aurora
carrying shabu. This circumstance gives rise to another question: whether that
information, by itself, is sufficient probable cause to effect a valid warrantless
arrest.
The long standing rule in this jurisdiction is that "reliable information" alone is not
sufficient to justify a warrantless arrest. The rule requires, in addition, that the
accused perform some overt act that would indicate that he has committed, is
actually committing, or is attempting to commit an offense. 24 We find no cogent
reason to depart from this well-established doctrine.
The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v.
Nuevas.27
In People v. Aruta, a police officer was tipped off by his informant that a certain
"Aling Rosa" would be arriving from Baguio City the following day with a large
volume of marijuana. Acting on said tip, the police assembled a team and deployed
themselves near the Philippine National Bank (PNB) in Olongapo City. While thus
positioned, a Victory Liner Bus stopped in front of the PNB building where two
females and a man got off. The informant then pointed to the team members the
woman, "Aling Rosa," who was then carrying a traveling bag. Thereafter, the team
approached her and introduced themselves. When asked about the contents of her
bag, she handed it to the apprehending officers. Upon inspection, the bag was
found to contain dried marijuana leaves.28
The facts in People v. Tudtud show that in July and August, 1999, the Toril Police
Station, Davao City, received a report from a civilian asset that the neighbors of a
certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for
the proliferation of marijuana in the area. Reacting to the report, the Intelligence
Section conducted surveillance. For five days, they gathered information and
learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian
asset informed the police that Tudtud had headed to Cotabato and would be back
later that day with a new stock of marijuana. At around 4:00 p.m. that same day, a
team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m.,
two men disembarked from a bus and helped each other carry a carton. The police
officers approached the suspects and asked if they could see the contents of the
box which yielded marijuana leaves.29
In People v. Nuevas, the police officers received information that a certain male
person, more or less 54" in height, 25 to 30 years old, with a tattoo mark on the
upper right hand, and usually wearing a sando and maong pants, would make a
delivery of marijuana leaves. While conducting stationary surveillance and
monitoring of illegal drug trafficking, they saw the accused who fit the description,
carrying a plastic bag. The police accosted the accused and informed him that they
were police officers. Upon inspection of the plastic bag carried by the accused, the
bag contained marijuana dried leaves and bricks wrapped in a blue cloth. In his bid
to escape charges, the accused disclosed where two other male persons would
make a delivery of marijuana leaves. Upon seeing the two male persons, later
identified as Reynaldo Din and Fernando Inocencio, the police approached them,
introduced themselves as police officers, then inspected the bag they were
carrying. Upon inspection, the contents of the bag turned out to be marijuana
leaves.30
In all of these cases, we refused to validate the warrantless search precisely
because there was no adequate probable cause. We required the showing of some
overt act indicative of the criminal design.
As in the above cases, appellant herein was not committing a crime in the presence
of the police officers. Neither did the arresting officers have personal knowledge
of facts indicating that the person to be arrested had committed, was committing,
or about to commit an offense. At the time of the arrest, appellant had just alighted
from the Gemini bus and was waiting for a tricycle. Appellant was not acting in
any suspicious manner that would engender a reasonable ground for the police
officers to suspect and conclude that he was committing or intending to commit a
crime. Were it not for the information given by the informant, appellant would not
have been apprehended and no search would have been made, and consequently,
the sachet of shabu would not have been confiscated.
We are not unaware of another set of jurisprudence that deems "reliable
information" sufficient to justify a search incident to a lawful warrantless arrest.
As cited in People v. Tudtud, these include People v.
Maspil, Jr.,31 People v. Bagista,32 People v. Balingan,33 People v. Lising,34 People
v. Montilla,35 People v. Valdez,36and People v. Gonzales.37 In these cases, the
Court sustained the validity of the warrantless searches notwithstanding the
absence of overt acts or suspicious circumstances that would indicate that the
accused had committed, was actually committing, or attempting to commit a
crime. But as aptly observed by the Court, except in Valdez and Gonzales, they
were covered by the other exceptions to the rule against warrantless searches. 38
Neither were the arresting officers impelled by any urgency that would allow them
to do away with the requisite warrant. As testified to by Police Officer 1 Aurelio
Iniwan, a member of the arresting team, their office received the "tipped No costs.
information" on May 19, 2003. They likewise learned from the informant not only
the appellants physical description but also his name. Although it was not certain SO ORDERED.
that appellant would arrive on the same day (May 19), there was an assurance that
he would be there the following day (May 20). Clearly, the police had ample
ANTONIO EDUARDO B. NACHURA
opportunity to apply for a warrant.39
Associate Justice

Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, Republic of the Philippines
the confiscated item is inadmissible in evidence consonant with Article III, Section
SUPREME COURT
3(2) of the 1987 Constitution, "any evidence obtained in violation of this or the
Manila
preceding section shall be inadmissible for any purpose in any proceeding."
EN BANC
Without the confiscated shabu, appellants conviction cannot be sustained based
on the remaining evidence. Thus, an acquittal is warranted, despite the waiver of
appellant of his right to question the illegality of his arrest by entering a plea and G.R. No. 81567 July 9, 1990
his active participation in the trial of the case. As earlier mentioned, the legality of
an arrest affects only the jurisdiction of the court over the person of the accused. A IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
waiver of an illegal, warrantless arrest does not carry with it a waiver of the ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA.
inadmissibility of evidence seized during an illegal warrantless arrest. 40 MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
One final note. As clearly stated in People v. Nuevas,41 vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN.
RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
x x x In the final analysis, we in the administration of justice would have no right
to expect ordinary people to be law-abiding if we do not insist on the full
protection of their rights. Some lawmen, prosecutors and judges may still tend to G.R. Nos. 84581-82 July 9, 1990
gloss over an illegal search and seizure as long as the law enforcers show the
alleged evidence of the crime regardless of the methods by which they were AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
obtained. This kind of attitude condones law-breaking in the name of law vs.
enforcement. Ironically, it only fosters the more rapid breakdown of our system of GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.
justice, and the eventual denigration of society. While this Court appreciates and
encourages the efforts of law enforcers to uphold the law and to preserve the peace G.R. Nos. 84583-84 July 9, 1990
and security of society, we nevertheless admonish them to act with deliberate care
and within the parameters set by the Constitution and the law. Truly, the end never IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
justifies the means.42 DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T.
ANONUEVO and RAMON CASIPLE, petitioners,
WHEREFORE, premises considered, the Court of Appeals Decision dated May vs.
22, 2008 in CA-G.R. CR-H.C. No. 00425 is REVERSED and SET ASIDE. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO
Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence. CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES,
S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention
The Director of the Bureau of Corrections is directed to cause the immediate Center, Camp Crame, Quezon City, respondents.
release of appellant, unless the latter is being lawfully held for another cause; and
to inform the Court of the date of his release, or the reasons for his confinement, G.R. No. 83162 July 9, 1990
within ten (10) days from notice.
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF
VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A.
OCAYA, petitioner,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA,
COL. NESTOR MARIANO, respondents.
G.R. No. 85727 July 9, 1990
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF:
DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE
STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA,
P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO
AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for
petitioners in G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in
G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
The Solicitor General for the respondents.
PER CURIAM:
The are eight (8) petitioners for habeas corpus filed before the Court, which have
been consolidated because of the similarity of issues raised, praying for the
issuance of the writ of habeas corpus, ordering the respective respondents to
produce the bodies of the persons named therein and to explain why they should
not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of
the writ of habeas corpus is not available to the petitioners as they have
been legally arrested and are detained by virtue of valid informations filed in court
against them.
The petitioners counter that their detention is unlawful as their arrests were
made without warrant and, that no preliminary investigation was first conducted,
so that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective
pleadings, and it finds that the persons detained have not been illegally arrested
nor arbitrarily deprived of their constitutional right to liberty, and that the
circumstances attending these cases do not warrant their release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is
recognized in law. The occasions or instances when such an arrest may be effected
are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as amended,
which provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
 In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of
Rule 113 of the Rules of Court, as amended, is justified when the person arrested
is caught in flagranti delicto, viz., in the act of committing an offense; or when an
offense has just been committed and the person making the arrest has personal
knowledge of the facts indicating that the person arrested has committed it. The
rationale behind lawful arrests, without warrant, was stated by this Court in the
case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy
of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances.
The record of the instant cases would show that the persons in whose behalf these
petitions for habeas corpus have been filed, had freshly committed or were
actually committing an offense, when apprehended, so that their arrests without a
warrant were clearly justified, and that they are, further, detained by virtue of valid
informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions
is in order.
I after the commission of the said offense for his arrest came a day after the said
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988,
the Regional Intelligence Operations Unit of the Capital Command (RIOU-
CAPCOM) received confidential information about a member of the NPA
Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St.
Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was
found that the wounded person, who was listed in the hospital records as Ronnie
Javelon, is actually Rolando Dural, a member of the NPA liquidation squad,
responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31
January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this
verification, Rolando Dural was transferred to the Regional Medical Services of
the CAPCOM, for security reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by eyewitnesses as the gunman who
went on top of the hood of the CAPCOM mobile patrol car, and fired at the two
(2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and
CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the
Caloocan City Fiscal who conducted an inquest and thereafter filed with the
Regional Trial Court of Caloocan City an information charging Rolando
Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon
Agents of Persons in Authority." The case was docketed therein as Criminal Case
No. C-30112 and no bail was recommended. On 15 February 1988, the
information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the
filing of the original information, was still unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this
Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The
Court issued the writ of habeas corpus on 9 February 1988 and the respondents
filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard
on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail
before the Regional Trial Court of Pasay City where charges for violation of the
Anti-Subversion Act had been filed against them, and they were accordingly
released. The petition for habeas corpus, insofar as Umil and Villanueva are
concerned, is now moot and academic and is accordingly dismissed, since the writ
of habeas corpus does not lie in favor of an accused in a criminal case who has
been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act of
shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just
shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples
Army (NPA), an outlawed subversive organization. Subversion being a continuing
offense, the arrest of Rolando Dural without warrant is justified as it can be said
that he was committing an offense when arrested. The crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses
committed in furtherance thereof or in connection therewith constitute direct
assaults against the State and are in the nature of continuing crimes. As stated by
the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners that
they were initially arrested illegally is, therefore, without basis in
law and in fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and
 other crimes and offenses committed in the furtherance, on the
occasion thereof, or incident thereto, or in connection therewith
under Presidential Proclamation No. 2045, are all in the nature
of continuing offenses which set them apart from the common
offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly then, the arrest of
the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its
fighting armed elements, or for committing non-violent acts but
in furtherance of the rebellion, is more an act of capturing them
in the course of an armed conflict, to quell the rebellion, than for
the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the
determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the
granting of bail if the offense is bailable. Obviously, the absence
of a judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against
government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is
thus impelled by the exigencies of the situation that involves the
very survival of society and its government and duly constituted
authorities. If killing and other acts of violence against the rebels
find justification in the exigencies of armed hostilities which is
of the essence of waging a rebellion or insurrection, most
assuredly so in case of invasion, merely seizing their persons and
detaining them while any of these contingencies continues
cannot be less justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court
below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and
Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly.
Rolando Dural is now serving the sentence imposed upon him by the trial court.
Thus, the writ of habeas corpus is no longer available to him. For, as held in the
early case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his
arrest, the fact remains that the defendant was actually in court
in the custody of the law on March 29, when a complaint
sufficient in form and substance was read to him. To this he
pleaded not guilty. The trial followed, in which, and in the
judgment of guilty pronounced by the court, we find no error.
Whether, if there were irregularities in bringing him personally
before the court, he could have been released on a writ of habeas
corpus or now has a civil action for damages against the person
who arrested him we need not inquire. It is enough to say that
such irregularities are not sufficient to set aside a valid judgment
rendered upon a sufficient complaint and after a trial free from
error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified. When
apprehended at the house of Renato Constantino in Marikina Heights, Marikina,
Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he
had with him letters to Renato Constantino and other members of the rebel group.
Amelia Roque, upon the other hand, was a member of the National United Front
Commission, in charge of finance, and admitted ownership of subversive
documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she had no
permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos
y Ibanes, a member of the NPA, who had surrendered to the military authorities,
told military agents about the operations of the Communist Party of the Philippines
(CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of
his former comrades as "Ka Mong", a staff member of the Communications and
Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka
Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka
Totoy". He also pointed to a certain house occupied by Renato Constantino located
in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila,
which is used as a safehouse of the National United Front Commission (NUFC) of
the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge
Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was
conducted at about 5:00 o'clock in the afternoon, by a combined team of the
Criminal Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG). In the course of the search, the following
articles were found and taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority to
possess the firearms, ammunition, radio and other communications equipment.
Hence, he was brought to the CIS Headquarters for investigation. When
questioned, he refused to give a written statement, although he admitted that he
was a staff member of the executive committee of the NUFC and a ranking
member of the International Department of the Communist Party of the Philippines
(CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound.
When accosted, he readily admitted to the military agents that he is a regular
member of the CPP/NPA and that he went to the place to deliver letters to "Ka
Mong", referring to Renato Constatino, and other members of the rebel group. On
further questioning, he also admitted that he is known as "Ka Miller" and that he
was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him
were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A &
Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell
datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated
August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a written but
jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka
Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the
whereabouts of Amelia Roque, the military agents went to the given address the
next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the
morning. After identifying themselves as military agents and after seeking
permission to search the place, which was granted, the military agents conducted a
search in the presence of the occupants of the house and the barangay captain of
the place, one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP.
They found ledgers, journals, vouchers, bank deposit books, folders, computer
diskettes, and subversive documents as well as live ammunition for a .38 SPL
Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia
Roque and the other occupants of the house were brought to the PC-CIS
Headquarters at Camp Crame, Quezon City, for investigation. Amelia
Roque admitted to the investigators that the voluminous documents belonged to
her and that the other occupants of the house had no knowledge of them. As a
result, the said other occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for
inquest after which an information charging her with violation of PD 1866 was
filed with the Regional Trial Court of Caloocan City. The case is docketed therein
as Criminal Case No. C-1196. Another information for violation of the Anti-
Subversion Act was filed against Amelia Roque before the Metropolitan Trial
Court of Caloocan City, which is docketed therein as Criminal Case No. C-
150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The
case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on
behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case,
however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City. According, the petition for habeas
corpus filed on his behalf is now moot and academic. Only the petition of Amelia
Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers
and/or members of the National United Front Commission (NUFC) of the CPP
was not controverted or traversed by said petitioners. The contention must be
deemed admitted. 5 As officers and/or members of the NUFC-CPP, their arrest,
without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando
Dural. The arrest without warrant of Roque was additionally justified as she was,
at the time of apprehension, in possession of ammunitions without license to
possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the rules.
Both are admittedly members of the standing committee of the NUFC and, when
apprehended in the house of Renato Constatino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they
had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening
of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the
house of Renato Constatino at Marikina Heights, Marikina, which was still under
surveillance by military agents. The military agents noticed bulging objects on
their waist lines. When frisked, the agents found them to be loaded guns.
Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they were
brought to PC Headquarters for investigation. Found in their possession were the
following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1)
magazine for Cal. 7.65 containing ten (10) live ammunition of
same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit
tampered with one (1) magazine containing five (5) live
ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon
Casiple as "Ka Totoy" of the CPP, by their comrades who had previously
surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were
charged with violation of Presidential Decree No. 1866 before the Regional Trial
Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases
Nos. 74386 ad 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on
behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said
Anonuevo and Casiple were unlawfully arrested without a warrant and that the
informations filed against them are null and void for having been filed without
prior hearing and preliminary investigation. On 30 August 1988, the Court issued
the writ of habeas corpus, and after the respondents had filed a Return of the Writ,
the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit The record shows
that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms
and ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are
null and void for want of a preliminary investigation. The filing of an information,
without a preliminary investigation having been first conducted, is sanctioned by
the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:
Sec. 7. When accused lawfully arrested without a warrant.
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his choice.
Notwithstanding such waiver, he may apply for bail as provided
in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
 If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduced evidence in his favor in the manner prescribed
in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign
a waiver of the provisions of Article 125 of the Revised Penal Code, as amended.
In the informations filed against them, the prosecutor made identical certifications,
as follows:
This is to certify that the accused has been charged in
accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal
Procedure, that no preliminary investigation was conducted
because the accused has not made and signed a waiver of the
provisions of Art. 125 of the Revised Penal Code, as amended;
that based on the evidence presented, there is reasonable ground
to believe that the crime has been committed, and that the
accused is probably guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had
been filed against them in court. Petitioners cannot now claim that they have been
deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky
Ocaya is justified under the Rules, since she had with her unlicensed ammunition
when she was arrested. The record of this case shows that on 12 May 1988, agents
of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed
with a search warrant issued by Judge Eutropio Migrino of the Regional Trial
Court of Pasig, Metro Manila, conducted a search of a house located at Block 19,
Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be
occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search,
Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and
several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky
Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky Ocaya could not produce any permit
or authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera,
on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf
of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was
illegally arrested and detained, and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so
that her arrest without a warrant is justified. No preliminary investigation was
conducted because she was arrested without a warrant and she refused to waive the
provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112
of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia
Roque claim that the firearms, ammunition and subversive documents alleged to
have been found in their possession when they were arrested, did not belong to
them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases to
accuse the petitioners falsely, has been shown. Besides, the arresting officers in
these cases do not appear to be seekers of glory and bounty hunters for, as counsel
for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the
evidence submitted during the inquest that petitioners are on the 'AFP Order of
Battle with a reward of P150,000.00 each on their heads.'" 6 On the other hand, as
pointed out by the Solicitor General, the arrest of the petitioners is not a product of
a witch hunt or a fishing expedition, but the result of an in-depth surveillance of
NPA safehouses pointed to by no less than former comrades of the petitioners in
the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque,
Buenaobra, Anonuevo and Casiple, was the lawful search and
seizure conducted by the military at the residence of Renato
Constantino at Villaluz Compound, Molave St., Marikina
Heights, Marikina, Metro Manila. The raid at Constantino's
residence, was not a witch hunting or fishing expedition on the
part of the military. It was a result of an in-depth military
surveillance coupled with the leads provided by former members
of the underground subversive organizations. That raid produced
positive results. to date, nobody has disputed the fact that the
residence of Constantino when raided yielded communication
equipment, firearms and ammunitions, as well as subversive
documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to his
place, reasonably conducted a "stake-out" operation whereby
some members of the raiding team were left behind the place.
True enough, barely two hours after the raid and Constantino's
arrest, petitioner Buenaobra arrived at Constantino's residence.
He acted suspiciously and when frisked and searched by the
military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only
that, Buenaobra admitted that he is a NPA courier and was there
to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and Casiple
arrived at Constantino's place. Would it be unreasonable for the
military agents to believe that petitioners Anonuevo and Casiple
are among those expected to visit Constantino's residence
considering that Constatino's information was true, in that
Buenaobra did come to that place? Was it unreasonable under
the circumstances, on the part of the military agents, not to frisk
and search anyone who should visit the residence of
Constantino, such as petitioners Anonuevo and Casiple? Must
this Honorable Court yield to Anonuevo and Casiple's flimsy
and bare assertion that they went to visit Constantino, who was
to leave for Saudi Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering that it
was Buenaobra who provided the leads on her identity? It cannot
be denied that Buenaobra had connection with Roque. Because
the former has the phone number of the latter. Why the necessity
of jumbling Roque's telephone number as written on a piece of
paper taken from Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted
reasonably, under the time, place and circumstances of the
events in question, especially considering that at the time of
petitioner's arrest, incriminatory evidence, i.e, firearms,
ammunitions and/or subversive documents were found in their
possession.
Petitioners, when arrested, were neither taking their snacks nor
innocently visiting a camp, but were arrested in such time, place
and circumstances, from which one can reasonably conclude tat
they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with
the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the
Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an
association of drivers and operators of public service vehicles in the Philippines,
organized for their mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988,
while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila,
he was awakened by his sister Maria Paz Lalic who told him that a group of
persons wanted to hire his jeepney. When he went down to talk to them, he was
immediately put under arrest. When he asked for the warrant of arrest, the men,
headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-
type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to
accompany him, but the men did not accede to his request and hurriedly sped
away.
He was brought to Police Station No. 8 of the Western Police District at
Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00
o'clock of the same morning, he was brought before the respondent Lim and, there
and then, the said respondent ordered his arrest and detention. He was thereafter
brought to the General Assignment Section, Investigation Division of the Western
Police District under Police Capt. Cresenciano A. Cabasal where he was detained,
restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in
view of the Information filed against him before the Regional Trial Court of
Manila, docketed therein as Criminal Case No. 88-683-85, charging him with
violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just committed
an offense in that in the afternoon of 22 November 1988, during a press conference
at the National Press Club.
Deogracias Espiritu through tri-media was heard urging all
drivers and operators to go on nationwide strike on November
23, 1988, to force the government to give into their demands to
lower the prices of spare parts, commodities, water and the
immediate release from detention of the president of the
PISTON (Pinag-isang Samahan ng Tsuper Operators
Nationwide). Further, we heard Deogracias Espiritu taking the
place of PISTON president Medardo Roda and also announced
the formation of the Alliance Drivers Association to go on
nationwide strike on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00
o'clock that afternoon at a gathering of drivers and symphatizers at the corner of
Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to
say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at and pagpapalaya sa ating pinuno na si Ka
Roda hanggang sa magkagulo na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was
invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed against
him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the
provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is
detained by virtue of a valid information filed with the competent court, he may
not be released on habeas corpus. He may, however be released upon posting bail
as recommended. However, we find the amount of the recommended bail
(P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in
the submission of Narciso Nazarenothat he was illegally arrested and is unlawfully
detained. The record of this case shows that at about 8:30 o'clock in the morning of
14 December 1988, one Romulo Bunye II was killed by a group of men near the
corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila.
One of the suspects in the killing was Ramil Regal who was arrested by the police
on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as
on of his companions in the killing of the said Romulo Bunye II. In view thereof,
the police officers, without warrant, picked up Narciso Nazareno and brought him
to the police headquarters for questioning. Obviously, the evidence of petitioner's
guilt is strong because on 3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II
was filed with the Regional Trial Court of Makati, Metro Manila. The case is
docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion
was denied by the trial court in an order dated 10 January 1989, even as the motion
to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the
same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ
of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of
Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989
and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of
the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which had taken cognizance of said case and
had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably
because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna
are based upon the facts and the law. Consequently, we will not disturb the same.
Evidently, the arrest of Nazareno was effected by the police without warrant
pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated
by his co-accused Ramil Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People
vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by
reason of a crime, does not presuppose as a necessary requisite
for the fulfillment thereof, the indubitable existence of a crime.
For the detention to be perfectly legal, it is sufficient that the
agent or person in authority making the arrest has reasonably
 sufficient grounds to believe the existence of an act having the
characteristics of a crime and that the same grounds exist to
believe that the person sought to be detained participated therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court judge, and that the court or judge had jurisdiction to issue the
process or make the order, of if such person is charged before any court, the writ
of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as
amended is quite explicit in providing that:
Sec. 4. When writ is allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything
in this rule be held to authorize the discharge of a person
charged with a convicted of an offense in the Philippines or of a
person suffering imprisonment under lawful judgment.
(emphasis supplied)
At this point, we refer to petitioner's plea for the Court of re-examine and,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas
corpus is no longer available after an information is filed against the person
detained and a warrant of arrest or an order of commitment, is issued by the court
where said information has been filed. 14 The petitioners claim that the said ruling,
which was handed down during the past dictatorial regime to enforce and
strengthen said regime, has no place under the present democratic dispensation and
collides with the basic, fundamental, and constitutional rights of the people.
Petitioners point out that the said doctrine makes possible the arrest and detention
of innocent persons despite lack of evidence against them, and, most often, it is
only after a petition for habeas corpus is filed before the court that the military
authorities file the criminal information in the courts of law to be able to hide
behind the protective mantle of the said doctrine. This, petitioners assert, stands as
an obstacle to the freedom and liberty of the people and permits lawless and
arbitrary State action.
We find, however, no compelling reason to abandon the said doctrine. It is based
upon express provision of the Rules of Court and the exigencies served by the law.
The fears expressed by the petitioners are not really unremediable. As the Court
sees it, re-examination or reappraisal, with a view to its abandonment, of the
Ilagan case doctrine is not the answer. The answer and the better practice would
be, not to limit the function of the habeas corpus to a mere inquiry as to whether
or not the court which issued the process, judgment or order of commitment or
before whom the detained person is charged, had jurisdiction or not to issue the
process, judgment or order or to take cognizance of the case, but rather, as the
Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas
corpus the court must inquire into every phase and aspect of petitioner's detention-
from the moment petition was taken into custody up to the moment the court
passes upon the merits of the petition;" and "only after such a scrutiny can the
court satisfy itself that the due process clause of our Constitution has in fact been
satisfied." This is exactly what the Court has done in the petitions at bar. This is
what should henceforth be done in all future cases of habeas corpus. In Short, all
cases involving deprivation of individual liberty should be promptly brought to the
courts for their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in
G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty
is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco,
Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81567 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA,
MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN.
RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T.
ANONUEVO and RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO
CARIO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES,
S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention
Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF
VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A.
OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA,
COL. NESTOR MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF
DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE
STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA,
P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO
AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
RESOLUTION
PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled
petitions, seeking reconsideration of the Court's decision promulgated on 9 July
1990 (the decision, for brevity) which dismissed the petitions, with the following
dispositive part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R.
No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional
liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No
costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement
that the decision did not rule as many misunderstood it to do that mere
suspicion that one is Communist Party or New People's Army member is a valid
ground for his arrest without warrant. Moreover, the decision merely applied long
existing laws to the factual situations obtaining in the several petitions. Among
these laws are th outlawing the Communist Party of the Philippines (CPP) similar
organizations and penalizing membership therein be dealt with shortly). It is
elementary, in this connection, if these laws no longer reflect the thinking or
sentiment of the people, it is Congress as the elected representative of the people
not the Court that should repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned
arrests made without warrant, and in relying on the provisions of the
Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the
fact that such arrests violated the constitutional rights of the persons
arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be
abandoned;
3. That the decision erred in considering the admissions made by the persons arrested as to their membership in
the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms,
ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those
confessions do not comply with the requirements on admissibility of extrajudicial admissions;
4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the
Rules of Court. 3
The writ of habeas corpus exists as a speedy and effective remedy to
relieve persons from unlawful restraint. 4 Therefore, the function of the special
proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so
that if detention is illegal, the detainee may be ordered forthwit released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision
dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the
arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with
law.
There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a
warrant of arrest, except in those cases express authorized by law. 6
The law expressly allowing arrests
witho warrant is found in Section 5, Rule 113 of the Rules of Court which states
the grounds upon which a valid arrest, without warrant, can be conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and
(b) of the said Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to he arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrest has committed
it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No.
81567) without warrant is justified it can be said that, within the contemplation
of Section 5 Rule 113, he (Dural) was committing an offense, when arrested
because Dural was arrested for being a member of the New People's Army, an
outlawed organization, where membership penalized, 7 and for subversion which,
like rebellion is, under the doctrine of Garcia vs. Enrile, 8a continuing offense,
thus:
The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance (sic) on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a
massive conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes
armed struggle for the overthrow of organized government, Dural did not cease to
be, or became less of a subversive, FOR PURPOSES OF ARREST, simply
because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was
identified as one of several persons who the day before his arrest, without warrant,

at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol
car. That Dural had shot the two (2) policemen in Caloocan City as part of his
mission as a "sparrow" (NPA member) did not end there and then. Dural, given
another opportunity, would have shot or would shoot other policemen anywhere as
agents or representatives of organized government. It is in this sense that
subversion like rebellion (or insurrection) is perceived here as a continuing
offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson,
etc., which generally end upon their commission, subversion and rebellion are
anchored on an ideological base which compels the repetition of the same acts of
lawlessness and violence until the overriding objective of overthrowing organized
government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the
arresting officers of his membership in the CPP/NPA. His arrest was based on
"probable cause," as supported by actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of
the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule
113 of the Rules of Court, which requires two (2) conditions for a valid arrestt
without warrant: first, that the person to be arrested has just committed an offense,
and second, that the arresting peace officer or private person has personal
knowledge of facts indicating that the person to be arrested is the one who
committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests
without warrant, based on "personal knowledge of facts" acquired by the arresting
officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant
must be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10
A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt
Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA
member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the
wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the
day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio,
Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as
"Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being
treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and
supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts
supported by circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed
in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in the hospital
records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the records
of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded
man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact,
it was found to be true. Even the petitioners in their motion for reconsideration, 13
believe that the confidential
information of the arresting officers to the effect that Dural was then being treated
in St. Agnes Hospital was actually received from the attending doctor and hospital
management in compliance with the directives of the law, 14 and, therefore, came
from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in
good faith by the officers who make the arrest, the Court notes that the peace
officers wno arrested Dural are deemed to have conducted the same in good faith,
considering that law enforcers are presumed to regularly perform their official
duties. The records show that the arresting officers did not appear to have been ill-
motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant,
of Dural was made in compliance with the requirements of paragraphs (a) and (b)
of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest,
without warrant, an information charging double murder with assault against
agents of persons in authority was filed against Dural in the Regional Trial Court
of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed
under judicial custody (as distinguished fro custody of the arresting officers). On
31 August 1988, he wa convicted of the crime charged and sentenced to reclusion

perpetua. The judgment of conviction is now on appeal before this Court in G.R.
No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo
Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No.
83162), their arrests, without warrant, are also justified. They were searched
pursuant to search warrants issued by a court of law and were found wit unlicensed
firearms, explosives and/or ammunition in their persons. They were, therefore,
caught in flagrante delicto which justified their outright arrests without warrant,
under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned
here that a few davs after their arrests without warrant, informations were filed in
court against said petitioners, thereby placing them within judicial custody and
disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by
announcing to this Court during the hearing of these petitions that he had chosen to
remain in detention in the custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by
a former NPA about the operations of the CPP and NPA in Metro Manila
and that a certain house occupied by one Renato Constantine, located in
the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro
Manila was being used as their safehouse; that in view of this
information, the said house was placed under military surveillance and on
12 August 1988, pursuant to a search warrant duly issued by court, a
search of the house was conducted; that when Renato Constantine was
then confronted he could not produce any permit to possess the firearms,
ammunitions, radio and other communications equipment, and he
admitted that he was a ranking member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August
1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other
members of the rebel group.
3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his
possession papers leading to the whereabouts of Roque;17 that, at the time of her arrest, the military agents found
subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988,
when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents
frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a
permit to possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the
premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house
was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of
the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the
military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses
(one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations,
with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants
thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and
Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be
arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of
the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a
ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the
time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they
admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were
positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the
corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of
Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque
house, do not appear to have been ill-motivated or irregularly performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural,
Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents
not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for
disciplinary action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial
authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and
secure the punishment therefor. 21
An arrest is therefore in the nature of an administrative
measure. The power to arrest without warrant is without limitation as long as the
requirements of Section 5, Rule 113 are met. This rule is founded on an
overwhelming public interest in peace and order in our communities.
In ascertaining whether the arrest without warrant is conducted in accordance with
the conditions set forth in Section 5, Rule 113, this Court determines not whether
the persons arrested are indeed guilty of committing the crime for which they were
arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can
validly compel the peace officers, in the performance of their duties and in the
interest of public order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in
Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted,
the arresting officers are not liable. 24
But if they do not strictly comply with the said
conditions, the arresting officers can be held liable for the crime of arbitrary
detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other
administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant,
on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the
afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and
Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and
sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis
supplied)
and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November
1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28
Espiritu was
arrested without warrant, not for subversion or any "continuing offense," but for
uttering the above-quoted language which, in the perception of the arresting
officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the
language as falling within free speech guaranteed by the Constitution. But, then,
Espiritu had not lost the right to insist, during the pre-trial or trial on the merits,
that he was just exercising his right to free speech regardless of the charged
atmosphere in which it was uttered. But, the authority of the peace officers to
make the arrest, without warrant, at the time the words were uttered, or soon
thereafter, is still another thing. In the balancing of authority and freedom, which
obviously becomes difficult at times, the Court has, in this case, tilted the scale in
favor of authority but only for purposes of the arrest(not conviction). Let it be
noted that the Court has ordered the bail for Espiritu's release to be reduced from
P60,000.00 to P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and
academic. For Espiritu had before arraignment asked the court a quo for re-
investigation, the peace officers did not appear. Because of this development, the
defense asked the court a quo at the resumption of the hearings to dismiss the case.
Case against Espiritu (Criminal Case No. 88-68385) has been provisionally
dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14
December 1988, Romulo Bunye II was killed by a group of men in Alabang,
Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28
December 1988, Ramil Regala, one of the suspects in the said killing, was arrested
and he pointed to Narciso Nazareno as one of his companions during the killing of
Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents
arrested Nazareno, without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28
December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that
the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had
to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent
possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several
facts and events surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso
Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial
Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in
an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga,
was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on
13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional
Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter
resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of
Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso
Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion
for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were
filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They
complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced
to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date
( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial
admission.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a
Communist Party member or a subversive is absolutely not a ground for the arrest
without warrant of the suspect. The Court predicated the validity of the questioned
arrests without warrant in these petitions, not on mere unsubstantiated suspicion,
but on compliance with the conditions set forth in Section 5, Rule 113, Rules of
Court, a long existing law, and which, for stress, are probable cause and good
faith of the arresting peace officers, and, further, on the basis of, as the records
show, the actual facts and circumstances supporting the arrests. More than the
allure of popularity or palatability to some groups, what is important is that the
Court be right.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 ACCORDINGLY, the motions for reconsideration of the decision dated 9 July
that he was an NPA courier. On the
1990, are DENIED. This denial is FINAL.
other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed
firearms, ammunition and subversive documents found in her possession during
her arrest, belonged to her. SO ORDERED.

The Court, it is true, took into account the admissions of the arrested persons of Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and
their membership in the CPP/NPA, as well as their ownership of the unlicensed Davide, Jr., JJ., concur.
firearms, ammunitions and documents in their possession. But again, these
admissions, as revealed by the records, strengthen the Court's perception that truly Republic of the Philippines
the grounds upon which the arresting officers based their arrests without warrant, SUPREME COURT
are supported by probable cause, i.e. that the persons arrested were probably guilty Manila
of the commission of certain offenses, in compliance with Section 5, Rule 113 of
the Rules of Court. To note these admissions, on the other hand, is not to rule that SECOND DIVISION
the persons arrested are already guilty of the offenses upon which their warrantless
arrests were predicated. The task of determining the guilt or innocence of persons
G.R. No. L-61770 January 31, 1983
arrested without warrant is not proper in a petition for habeas corpus. It pertains to
the trial of the case on the merits.
JOSE S. BAGCAL, petitioner,
vs.
As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs.
HON. ROLANDO R. VILLARAZA, Presiding Judge of the City Court of
Enrile should be abandoned, this Court finds no compelling reason at this time to
Cagayan de Oro City, Branch II, respondent.
disturb the same, particularly ln the light of prevailing conditions where national
security and liability are still directly challenged perhaps with greater vigor from
the communist rebels. What is important is that everv arrest without warrant be RESOLUTION
tested as to its legality via habeas corpus proceeding. This Court. will promptly
look into and all other appropriate courts are enjoined to do the same the
legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule
113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee ABAD SANTOS, J.:
shall forthwith be ordered released; but if such conditions are met, then the
detainee shall not be made to languish in his detention but must be promptly tried Acting on Jose S. Bagcal's petition asking for the issuance of a writ of habeas
to the end that he may be either acquitted or convicted, with the least delay, as corpus alleging that he was illegally detained, We issued the writ on October 19,
warranted by the evidence.
1982, returnable to the Executive Judge of the Court of First Instance (now
Regional Trial Court) of Cagayan de Oro City, on November 8, 1982.
After due hearing, Judge Eulalio D. Rosete rendered a decision on November 17,
1982, with the following disposition:
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered denying the petition for the release of the petitioner but
ordering the Respondent Hon. Rolando R. Villaraza to hear the
petition for bail filed by the petitioner at the soonest time and as
speedy as possible, to determine only if the evidence supporting
the charge of murder is strong, and if not, to fix the bail.
Petitioner has appealed the decision to Us; he asks that he be immediately released
from detention. Respondent Judge Rolando R. Villaraza, on the other hand, has
asked Us to clarify his role in respect of the hearing for bail.
Petitioner was arrested on February 28, 1982, by the Philippine Constabulary. The
arrest was without warrant. He has been detained at Camp Alagar, Cagayan de Oro
City, since his arrest to the present.
On August 6, 1982, the City Fiscal of Cagayan de Oro filed an information for
murder against petitioner with the Municipal Trial Court of Cagayan de Oro
presided by respondent Judge Rolando R. Villaraza. The information was
accompanied by the affidavits of several persons.1wph1.t They were not
subscribed before Judge Villaraza who did not ask the affiants to ratify their oaths
nor did he ask them searching questions. The information has no certification by
the City Fiscal that he had conducted a preliminary investigation. Indeed, if the
City Fiscal had conducted a preliminary investigation, the information should have
been filed in the Court of First Instance which had jurisdiction to try the case on its
merits. It is obvious that the information was filed with Judge Villaraza so that he
would conduct a preliminary examination and thereafter issue a warrant of arrest.
Judge Villaraza under the circumstances mentioned above issued a warrant for the
arrest of petitioner. The circumstances attending the issuance of the warrant of
arrest have been invoked in the petition for habeas corpus. And it is the warrant of
arrest that has been invoked in the return of the writ to justify petitioner's detention
and it is also the basis for the decision of Judge Rosete on denying the petition.
Petitioner claims, and Judge Rosete agrees, that respondent Judge Villaraza should
not have issued a warrant of arrest without a preliminary examination of the
witnesses for the prosecution. However, Judge Rosete held, and We agree, that
although the warrant of arrest was irregularly issued, any infirmity attached to it
was cured when petitioner submitted himself to the jurisdiction of the court by
applying for bail, submitting a memorandum in support thereof, and filing a
motion for reconsideration when his application was denied.
WHEREFORE, We affirm the decision of Judge Rosete with the sole modification
that the Executive Judge of the Regional Trial Court in Cagayan de Oro City and
not the municipal trial court, should conduct a hearing on the application for bail.
If he finds the evidence against petitioner to be strong, he should deny bail but if
he finds the evidence not sufficiently strong, he should grant bail. The record of
the case against petitioner should be elevated to the aforesaid Executive Judge.
SO ORDERED.
Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.
BROWN VS ILLINOIS
Facts of the case
On May 6, 1968, Roger Corpus was shot and killed in his apartment. The police
obtained the name of Richard Brown, who was identified as an acquaintance of the
victim, though not a suspect. On May 13, 1968, detectives arrested Brown and
searched his apartment without probable cause and without a warrant. The
detectives read Brown his Miranda rights and proceeded to question him. During
the questioning, Brown confessed to assisting in Corpus murder. Later, Brown
was questioned again after being read his Miranda rights a second time. He
substantially repeated his account of the murder.
Prior to his trial, Brown moved to suppress the two statements based on the fact
that his arrest was illegal and the statements were taken in violation of his Fourth
and Fifth Amendment rights. The motion was denied and the case proceeded to
trial. The jury found Brown guilty. The Supreme Court of Illinois affirmed the
judgment but did not accept the States argument that the arrest was legal.
Question
Should inculpatory statements resulting from an illegal arrest but after the reading
of Miranda rights be admissible in trial?

Conclusion
No. Justice Harry A. Blackmun delivered the unanimous opinion. The Court held
that Miranda warnings are not sufficient to remove the taint of an illegal arrest
from statements made in custody. The Court held that the Fourth and Fifth
Amendment were meant to work together, so that even if a statement is found to
be voluntary as required by the Fifth Amendment, it could still be the result of an
illegal search under the Fourth Amendment and therefore inadmissible. Because
Browns arrest was illegal and the statements clearly stemmed from that arrest, the
Court held that the statements were inadmissible.
Justice Byron R. White concurred in the judgment and wrote that the Miranda
warnings do not circumvent the requirements of the Fourth Amendment.
Justice Lewis F. Powell, Jr. wrote an opinion concurring in part. He argued that the
admissibility of Browns statements should be considered in the context of the
Fourth Amendment exclusionary rule. He also argued that the case should be
remanded because the trial court made no determination regarding probable cause
for the original arrest. Justice William H. Rehnquist joined in the concurrence in
part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2128 May 12, 1948
MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,
vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF
MUNICIPAL JAIL, BOTH OF CITY OF MANILA,respondents.
Enrique Q. Jabile for petitioners.
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D.
Guinto Lazaro for respondents.
FERIA, J.:
Upon complaint of Bernardino Malinao, charging the petitioners with having
committed the crime of robbery, Benjamin Dumlao, a policeman of the City of
Manila, arrested the petitioners on April 2, 1948, and presented a complaint
against them with the fiscal's office of Manila. Until April 7, 1948, when the
petition for habeas corpus filed with this Court was heard, the petitioners were still
detained or under arrest, and the city fiscal had not yet released or filed against
them an information with the proper courts justice.
This case has not been decided before this time because there was not a sufficient
number of Justices to form a quorum in Manila, And it had to be transferred to the
Supreme Court acting in division here in Baguio for deliberation and decision. We
have not until now an official information as to the action taken by the office of
the city fiscal on the complaint filed by the Dumlao against the petitioners. But
whatever night have been the action taken by said office, if there was any, we have
to decide this case in order to lay down a ruling on the question involved herein for
the information and guidance in the future of the officers concerned.
The principal question to be determined in the present case in order to decide
whether or not the petitioners are being illegally restrained of their liberty, is the
following: Is the city fiscal of manila a judicial authority within the meaning of the
provisions of article 125 of the Revised Penal Code?
Article 125 of the Revised Penal Code provides that "the penalties provided in the
next proceeding article shall be imposed upon the public officer or employee who
shall detain any person for some legal ground and shall fail to deliver such person
to the proper judicial authorities within the period of six hours."
Taking into consideration the history of the provisions of the above quoted article,
the precept of our Constitution guaranteeing individual liberty, and the provisions
of Rules of Court regarding arrest and habeas corpus, we are of the opinion that
the words "judicial authority", as used in said article, mean the courts of justices or
judges of said courts vested with judicial power to order the temporary detention
or confinement of a person charged with having committed a public offense, that
is, "the Supreme Court and such inferior courts as may be established by law".
(Section 1, Article VIII of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken from article 202 of
the old Penal Code formerly in force of these Islands, which penalized a public
officer other than a judicial officer who, without warrant, "shall arrest a person
upon a charge of crime and shall fail to deliver such person to the judicial authority
within twenty four hours after his arrest." There was no doubt that a judicial
authority therein referred to was the judge of a court of justice empowered by law,
after a proper investigation, to order the temporary commitment or detention of the
person arrested; and not the city fiscals or any other officers, who are not
authorized by law to do so. Because article 204, which complements said section
202, of the same Code provided that "the penalty of suspension in its minimum
and medium degrees shall be imposed upon the following persons: 1. Any judicial
officer who, within the period prescribed by the provisions of the law of criminal
procedure in force, shall fail to release any prisoner under arrest or to commit such
prisoner formally by written order containing a statement of the grounds upon
which the same is based."
Although the above quoted provision of article 204 of the old Penal Code has not
been incorporated in the Revised Penal Code the import of said words judicial
authority or officer can not be construed as having been modified by the mere
omission of said provision in the Revised Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides that "the right of the
people to be secure in their persons...against unreasonable seizure shall not be
violated, and no warrant [of arrest, detention or confinement] shall issue but upon
probable cause, to be determined by the judge after the examination under oath or
affirmation of the complaint and the witness he may produce." Under this
constitutional precept no person may be deprived of his liberty, except by warrant
of arrest or commitment issued upon probable cause by a judge after examination
of the complainant and his witness. And the judicial authority to whom the person
arrested by a public officers must be surrendered can not be any other but court or
judge who alone is authorized to issue a warrant of commitment or provisional
detention of the person arrested pending the trial of the case against the latter.
Without such warrant of commitment, the detention of the person arrested for than
six hours would be illegal and in violation of our Constitution.
Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which,
referring to the duty of an officer after arrest without warrant, provides that "a
person making arrest for legal ground shall, without unnecessary delay, and within
the time prescribed in the Revised Penal Code, take the person arrested to the
proper court or judge for such action for they may deem proper to take;" and by
section 11 of Rule 108, which reads that "after the arrest by the defendant and his
delivery to the Court, he shall be informed of the complaint or information filed
against him. He shall also informed of the substance of the testimony and evidence
presented against him, and, if he desires to testify or to present witnesses or
evidence in his favor, he may be allowed to do so. The testimony of the witnesses
need not be reduced to writing but that of the defendant shall be taken in writing
and subscribed by him.
And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the
Rules of Court. According to the provision of said section, "a writ of habeas
corpus shall extend any person to all cases of illegal confinement or detention by
which any person is illegally deprived of his liberty"; and "if it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge, or by virtue of a judgement or order of a court
of record, and that the court or judge had jurisdiction to issue the process, render
judgment, or make the order, the writ shall not be allowed. "Which a contrario
sensu means that, otherwise, the writ shall be allowed and the person detained
shall be released.
The judicial authority mentioned in section 125 of the Revised Penal Code can not
be construed to include the fiscal of the City of Manila or any other city, because
they cannot issue a warrant of arrest or of commitment or temporary confinement
of a person surrendered to legalize the detention of a person arrested without
warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13;
Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214).
The investigation which the city of fiscal of Manila makes is not the preliminary
investigation proper provided for in section 11, Rule 108, above quoted, to which
all person charged with offenses cognizable by the Court of First Instance in
provinces are entitled, but it is a mere investigation made by the city fiscal for the
purpose of filing the corresponding information against the defendant with the
proper municipal court or Court of First Instance of Manila if the result of the
investigation so warrants, in order to obtain or secure from the court a warrant of
arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of
the preliminary investigation proper to avoid or prevent a hasty or malicious
prosecution, since defendant charged with offenses triable by the courts in the City
of Manila are not entitled to a proper preliminary investigation.
The only executive officers authorized by law to make a proper preliminary
investigation in case of temporary absence of both the justice of the peace and the
auxiliary justice of the peace from the municipality, town or place, are the
municipal mayors who are empowered in such case to issue a warrant of arrest of
the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and
section 2 of Rule 109.) The preliminary investigation which a city fiscal may
conduct under section 2, Rule 108, is the investigation referred to in the
proceeding paragraph.
Under the law, a complaint charging a person with the commission of an offense
cognizable by the courts of Manila is not filed with municipal court or the Court of
First Instance of Manila, because as above stated, the latter do not make or conduct
a preliminary investigation proper. The complaint must be made or filed with the
city fiscal of Manila who, personally or through one of his assistants, makes the
investigation, not for the purpose of ordering the arrest of the accused, but of filing
with the proper court the necessary information against the accused if the result of
the investigation so warrants, and obtaining from the court a warrant of arrest or
commitment of the accused.
When a person is arrested without warrant in cases permitted bylaw, the officer or
person making the arrest should, as abovestated, without unnecessary delay take or
surrender the person arrested, within the period of time prescribed in the Revised
Penal Code, to the court or judge having jurisdiction to try or make a preliminary
investigation of the offense (section 17, Rule 109); and the court or judge shall try
and decide the case if the court has original jurisdiction over the offense charged,
or make the preliminary investigation if it is a justice of the peace court having no
original jurisdiction, and then transfer the case to the proper Court of First Instance
in accordance with the provisions of section 13, Rule 108.
In the City of Manila, where complaints are not filed directly with the municipal
court or the Court of First Instance, the officer or person making the arrest without
warrant shall surrender or take the person arrested to the city fiscal, and the latter
shall make the investigation above mentioned and file, if proper, the corresponding
information within the time prescribed by section 125 of the Revised Penal Code,
so that the court may issue a warrant of commitment for the temporary detention
of the accused. And the city fiscal or his assistants shall make the investigation
forthwith, unless it is materially impossible for them to do so, because the
testimony of the person or officer making the arrest without warrant is in such
cases ready and available, and shall, immediately after the investigation, either
release the person arrested or file the corresponding information. If the city fiscal
has any doubt as to the probability of the defendant having committed the offense
charged, or is not ready to file the information on the strength of the testimony or
evidence presented, he should release and not detain the person arrested for a
longer period than that prescribed in the Penal Code, without prejudice to making
or continuing the investigation and filing afterwards the proper information against
him with the court, in order to obtain or secure a warrant of his arrest. Of course,
for the purpose of determining the criminal liability of an officer detaining a
person for more than six hours prescribed by the Revised Penal Code, the means of
communication as well as the hour of arrested and other circumstances, such as the
time of surrender and the material possibility for the fiscal to make the
investigation and file in time the necessary information, must be taken into
consideration.
To consider the city fiscal as the judicial authority referred to in article 125 of the
Revised Penal Code, would be to authorize the detention of a person arrested
without warrant for a period longer than that permitted by law without any process
issued by a court of competent jurisdiction. The city fiscal, may not, after due
investigation, find sufficient ground for filing an information or prosecuting the
person arrested and release him, after the latter had been illegally detained for days
or weeks without any process issued by a court or judge.
A peace officer has no power or authority to arrest a person without a warrant
upon complaint of the offended party or any other person, except in those cases
expressly authorized by law. What he or the complainant may do in such case is to
file a complaint with the city fiscal of Manila, or directly with the justice of the
peace courts in municipalities and other political subdivisions. If the City Fiscal
has no authority, and he has not, to order the arrest even if he finds, after due
investigation, that there is a probability that a crime has been committed and the
accused is guilty thereof, a fortiori a police officer has no authority to arrest and
detain a person charged with an offense upon complaint of the offended party or
other persons even though, after investigation, he becomes convinced that the
accused is guilty of the offense charged.
In view of all the foregoing, without making any pronouncement as to the
responsibility of the officers who intervened in the detention of the petitioners, for
the policeman Dumlao may have acted in good faith, in the absence of a clear cut
ruling on the matter in believing that he had complied with the mandate of article
125 by delivering the petitioners within six hours to the office of the city fiscal,
and the latter might have ignored the fact that the petitioners were being actually
detained when the said policeman filed a complaint against them with the city
fiscal, we hold that the petitioners are being illegally restrained of their liberty, and
their release is hereby ordered unless they are now detained by virtue of a process
issued by a competent court of justice. So ordered.
Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.
Separate Opinions
PERFECTO, J.:, concurring:
Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the
morning of April 2, 1948, upon complaint of Bernardino Malinao, for the crime of
alleged robbery.
The fact is alleged expressly in respondent's answer supported by the affidavit of
Benjamin Dumlao (Exhibit 1), the patrolman who made the arrest. Therein it is
also alleged that petitioners were "finally" placed under arrest at 4:30 p.m. and
5:00 p.m. respectively, on the same day, April 2, l948.
The distinction between the two arrests, the apprehension made at 11:00 a.m. and
the "final arrest at 4:30 and 5:00 p.m., is purely academic or imaginary. There was
but one arrest, effected at 11:00 a.m., April 2, 1948, and continued without
interruption until the petition had been filed with us April 5, 1948, at the hearing
on the next day. Until the moment we are writing this opinion we have not heard
that petitioners have been released at any time.
Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal
complaint was filed with the fiscal's office of Manila, and that by said filing their
duty to deliver arrested persons, within six hours from their arrest, to a proper
judicial authority has been duly complied with.
There is no dispute that no warrant of arrest has ever been issued for the
apprehension of petitioners.
Petitioners pray for their immediate release, alleging that, as the six-hour period
provided in article 125 of the Revised Penal Code had expired, their continued
detention is illegal.
Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or
in its maximum period to reclusion temporal, or from 4 months and 11 days to 20
years imprisonment, for the crime of a public officer or employee who, after
detaining a person, "shall fail to deliver such person to the proper judicial
authorities within the period of six hours."
Both parties implying from the above provision that after six hours of said failure,
petitioners shall be entitled to be released, discussed the question whether there is
such failure or not.
Upon the very facts alleged by respondents and supported by documentary
evidence accompanying it, there should not be any dispute that there is such
failure.
(a) Respondents have not delivered the persons of petitioners to any authority, and
much less to any judicial authority.
(b) Their filing of a complaint with the office of the fiscal of Manila is not a
delivery of the persons of petitioners. Said persons are not a complaint. A
complaint, whether oral or written, can never be elevated to the category of the
person. No one is crazy enough to confuse or identify a person with a complaint.
(c) Even in the false hypothesis that respondents, by filing the complaint, intended
to make a delivery of the persons of petitioners, if not actually, constructively, the
fiscal's office is not a judicial authority.
(d) Under our Constitution and laws, judicial authorities comprehend only courts
of justice, such as the Supreme Court and all other inferior Court, and justices and
judges. The authority possessed and exercised by judicial authorities is judicial,
and the Constitution(section 1, Article VIII) vests the judicial power exclusively
"in one Supreme Court and in such inferior courts as may be established by law."
Respondents' pretension in making the fiscal of Manila a judicial authority is
absolutely groundless, upon the clear letter of the fundamental law. Counsel for
respondents himself had to admit that said officer belongs to the administrative or
executive department. Under the tripartite system of the government established by
the Constitution, it is extreme absurdity to make an administrative or executive
officer, or any officer of the executive department or branch, a judicial authority.
Such will make of separation of powers a madman's illusion.
That a fiscal is not a judicial authority has been unmistakably declared in the
decision in Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. The statement made
therein that there was yet no purpose of deciding whether a fiscal is a judicial
authority or not, is just a rhetorical figure that is a judicial authority or not, is just a
rhetorical figure that should not deceive any one. All those who can read, will that
the decision has made the declaration. It is there stated in plain language that the
fiscal is "unlike" a judicial authority.
"Unlike" means, as an elementary school student knows, not like, dissimilar,
diverse, different.
No warrant of arrest having been issued by any competent tribunal for the
apprehension of petitioners, said apprehension appears to be illegal.
At any rate, even under the hypothesis that it was legal and continued to be so for
six hours, this time having expired seven days ago, the continued detention and
confinement of petitioners is clearly illegal, and not only illegal but criminal,
involving an offense committed by public officers and heavily punished by the
Revised Penal Code.
Regarding the question as to legality of the arrest, counsel for respondents has
advanced the shocking theory that police officers may arrest any person just for
questioning or investigation, without any warrant of arrest.
The theory is absolutely unconstitutional and could have been entertained only
under the "Kempei" system implanted by the brutal Japanese army occupation.
Such theory represents an ideology incompatible with human dignity. Reason
revolts against it.
Respondents are ordered, upon notice of the decision, to immediately release the
two petitioners and to report to this Court the time when the release shall have
been effected.
TUASON, J., dissenting:
I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz.,
1214.
RESOLUTION
August 27, 1948
FERIA, J.:
This is a motion for reconsideration of our decision which holds that the phrase
"judicial authority" used in the article 125 of the Revised Penal Code, to whom a
person arrested without warrant shall be delivered by the officer making the arrest
within the period of six hours from the arrest, means a competent court or judge,
and the City Fiscal is not such a judicial authority.
We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479,
that the provisions of the Provisional Law for the application of the provisions of
the Spanish Penal Code in the Philippines by Royal Decree of September 4, 1884,
are in force of this Islands insofar as they have not been repealed or amended by
implication by the enactment of the body of laws put in force in these Islands since
the change from Spanish to American sovereignty. According to the ruling of this
court in said case, a person may be arrested without warrant in the cases specified
in Rules 27 and 28 of said provisional law and section 37 of Act No. 183 (Charter
of Manila). The provisions of said Rules 27 and 28 are substantially the same of
those contained in section 6 Rule 109 of the Rules of Court which superseded
them; and the provisions of section 37 of Act No. 183 above reffered to have been
incorporated in section 2463 of the Revised Administrative Code. Both section 6
of Rule 109, and the pertinent provisions of said section 2463 of the Revised
Administrative Code are now the laws in force on the subject.
Article 30 of said Provisional Law for the application of the Penal Law in the
Philippines also provides:
The executive authorities or the agents detaining a person shall release the
same or else turn him over to the judicial authorities within twenty four
hours after the arrest if made in the head town of the district, or within as
brief a period as the distance and transportation facilities permit.
And the next article 31 of the same law reads as follows:
Within twenty four hours after the person arrested has been surrendered
to the competent judge of Court of First Instance, the latter shall order the
commitment or release of the prisoner by warrant containing the grounds
on which it is based (auto motivado).
If it is impossible to do so because of the complexity of the facts, the
number of defendants or any other serious cause, which must be made of
record, the time of detention may be extended to three days. Upon the
expiration of that period of time the judge shall order the commitment or
the release of the defendant. The warrant of commitment shall be ratified
after the defendant has been heard within the period of sixty two hours
from the time the defendant has been committed to prison.
Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any
person making arrest for legal ground shall, without unnecessary delay and within
the time prescribed in the Revised Peal Code, take the person arrested to the proper
court or judge for such action as they may deem proper to take," and by article 125
of the Revised Penal Code already quoted.
But the provisions of Rule 31 above quoted are still in force because they may
have not been repealed, either expressly or by implication, by any law or the
present Rules of Court, except the last sentence, thereof which is no longer in
force. The procedure of hearing the accused after he has been committed to prison
referred to in said last sentence, is a sort preliminary investigation by the judge or
justice of the peace according to the present procedure. Persons arrested or accused
in the City of Manila are not entitled to such investigation. In provinces the justice
of the peace or judge shall, according to section 2 of Act No. 194, "make the
preliminary investigation of the charge as speedily as may be consistent with the
right and justice, but in any event he must make the investigation within three days
of the time the accused was brought before him, unless the accused or complainant
shall ask for delay in order that witnesses may be obtained, or for other good and
sufficient reason, in which event a continuance for a reasonable time may be
allowed." This provision of section 2 of Act No. 194 is still in force, because no
law has been enacted amending or repealing it. (Marcos vs. Cruz [May 13, 1939]
1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court on Criminal Procedure do
not undertake to dispose of all subjects of preliminary investigation, and repeal all
laws on the subject not incorporated therein; especially those that, like the said
provisions of section 2, Act No. 194, confer substantive rights upon defendants
which can not be diminished, increased or modified by the Rules of Court (section
13, Article VIII, of the Constitution).
In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law,
article 204 of the old Penal Code, from which article 125 of the Revised Penal
Code was taken, and section 1 (3) Article III of the Constitution, there can be no
doubt that the judicial authority within the meaning of article 125 of the Revised
Penal Code must be a judge who has authority to issue a written warrant of
commitment or release containing the ground on which it is based (auto motivado).
Because said section 17 of Rule 109 expressly provides that the officer making the
arrest without warrant shall, within the time prescribed in the Revised Penal Code,
take the person arrested to a court or judge for such action as the latter may deem
proper to take; Rule 31 expressly states that, within twenty four hours or at most
three days after the person arrested has been delivered to the judge of Court of
First Instance (and alsothe justice of the peace now), the latter shall order the
commitment or release of the prisoner by a warrant containing the ground upon
which the commitment or release is based (auto motivado); article 204 of the Penal
Code (not incorporated in the Revised Penal Code), penalize the judicial authority
or judge who fails to comply with the provisions of said Rule 31; and section 1(3)
Article III of the Constitution provides that no warrant shall issue but upon
probable cause, to be determined by the judge after examination under oath or
affidavit of the complainant and witnesses he may produce," in order to safeguard
"the right of the people to be secured in their person ... against unreasonable
seizure" or detention for a longer period than that fixed or considered by law as
reasonable (six hours according to section 125 of the Revised Penal Code).
It is obvious that the city fiscal is not a city judge, and has no power to issue order
or commitment or release by a written warrant containing the ground on which it is
based. As a matter of fact the city fiscal has never exercised such power since that
office was created. In justice to the city fiscal, we have to state that the latter did
not and does not contend in his motion for reconsideration that it has the power to
issue such a warrant, as contended in the dissenting opinion.
To consider a city fiscal as a judicial authority within the meaning of article 125 of
the Revised Penal Code, would be to place a person arrested in provinces without
warrant in a better position than those arrested in the City of Manila. Because, as
there is no law requiring the city fiscal to act or file an information against such
person within a limited period of time, after the arresting officer has taken the
prisoner to the city fiscal within six hours, the prisoner may be held under
detention without any warrant for days and weeks and possibly months until such
time as the city fiscal may take action, either by releasing the prisoner without
filing any information, or filing an information with the proper city court and
obtain a warrant of commitment. While a person arrested outside of the City of
Manila has to be delivered by the arresting person or peace officer to the
competent judge within six hours after his arrest, and the latter shall have to
investigate the charge and issue a warrant of release or commitment of the prisoner
within the period of twenty four hours or at most three days prescribed in said
article 31 of the Provisional Law.
It is obvious that the surrender or delivery to the judicial authority of a person
arrested without warrant by a peace officer, does not consist in a physical delivery,
but in making an accusation or charge or filing of an information against the
person arrested with the corresponding court or judge, whereby the latter acquires
jurisdiction to issue an order of release or of commitment of the prisoner, because
the arresting officer can not transfer to the judge and the latter does not assume the
physical custody of the person arrested. And in the City of Manila it does consist
in delivering physically the body of the prisoner to the city fiscal, for the latter will
not assume the responsibility of being the custodian of the prisoner; nor in making
or lodging a complaint against him with the said fiscal, because the latter has no
power to order the commitment or release of the prisoner by a warrant containing
the ground on which it is based (auto motivado). Such delivery is a legal one and
consists in making a charge or filing a complaint against the prisoner with the
proper justice of the peace or judge of Court of First Instance in provinces, and in
filing by the city fiscal of an information with the corresponding city courts after
an investigation if the evidence against said person so warrants. Upon the filing of
such information will the prisoner be deemed deliver to a judicial authority in the
City of Manila within the meaning of article 125 of the Revised Penal Code?
The city court or judge need not make an investigation of the facts alleged in the
information, which the judge or justices of the peace in provinces have to make
before issuing the proper warrant, because the law vest the power in the city fiscal,
but said city judge shall determine only the legal question whether said facts
constitute an offense or violation of ordinances, and issue a warrant of
commitment if they do, or of release if they do not.
As a peace officer can not deliver directly the person arrested to the city courts, he
shall deliver him to said court through the city fiscal, and if the latter does not take
the prisoner in time to the latter so that the proper investigation may be made and
information filed within six hours, he has to release the prisoner in order to avoid
criminal liabilty for violation of article 125 of the Revised Penal Code. The city
fiscal is not an agent of the arresting officer, but as prosecuting officer, he will be
recreant to his duty if he does not do his best to make the investigation and file the
corresponding information in time against the person arrested without warrant, in
order to effect the delivery of the prisoner to the city courts within the period of six
hours prescribed by law, and thus prevent his being released by the officer making
the arrest. If the city fiscal does not file the information within said period of time
and the arresting officer continues holding the prisoner beyond the six-hour period,
the fiscal will not be responsible for violation of said article 125, because he is not
the one who arrested and illegally detained the person arrested, unless he has
ordered or induced the arresting officer to hold and not release the prisoner after
the expiration of said period.
Section 2640 of the Revised Administrative Code which specifies the powers and
duties of chief of police of the City of Manila, authorizes the latter "to take good
and sufficient bail for the appearance before the city court of any person arrested
for violation of any city ordinance: Provided, however, That he shall not exercise
this power in cases of violation of any penal law except when the fiscal of the city
shall so recommend and fix the bail to be required of the person arrested." These
provisions do not authorize, either expressly or by implication, the city fiscal to
order the detention of the prisoner if bond is not given, not only because they refer
to the powers of the chief of police of Manila and not of the city fiscal, but because
the only incidental authority granted to the latter is to recommend the granting of
the bail to be required of the person arrested for violation of any penal law in order
that the chief of police may release the latter on bail. If no bail is given by the
person arrested, neither the chief of police, who is only authorized to release on
bail, has power to detain the person arrested for more than six hours; nor the city
fiscal, who is only empowered to fix and recommend the bail to the chief of police,
has authority to order the detention of persons arrested for violation of a penal law.
The above-quoted provisions of section 2640 of the Revised Administrative Code
refers evidently to persons arrested without warrant, for accused arrested by virtue
of a warrant issued by the courts may be released on bail only by order of the court
or judge that issued the warrant and has exclusive jurisdiction or control over the
person arrested. The purpose of the law in empowering the chief of police of
Manila to release the prisoner if he sets up a bail, is to relieve the officer making
the arrest from the necessity of taking the prisoner to the city fiscal, and the latter
from filing an information with the proper courts within the period of time
prescribed by law.
The dissenting opinion calls a general principle of law an excerpt of the Corpus
Juris Secundum quoted therein which says that "the officer however need not
necessarily have personal knowledge of the facts constituting the offense in the
sense of having seen or witnessed the offense himself, but he may if there are no
circumstances known to him by which materially impeach his information, acquire
his knowledge from information imparted to him by reliable and credible third
persons or by the information together with other suspicious circumstances" (6
C.J.S., 599, 600), and after the quotation adds: "This is a common law rule
implanted in the Philippines along with its present form of government, a rule
which has been cited and applied by this Court in a number of cases (U. S. vs.
Santos, 36 Phil., 853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil.,
516).
The above-quoted excerpt is not a general principle of law or a common law rule
implanted in the Philippines. It is a summary of the ruling of several State courts
based on statutory exceptions of the general rule. "It is the general rule, although
there are statutory exceptions and variations, that a peace officer has no right to
make an arrest without a warrant, upon a mere information of a third person" (5
C.J., p. 404), because "statutes sometime authorize peace officer to make arrest
upon information" (4 Am. Jur., p. 17). In none of the cases cited in the dissenting
opinion has this Court quoted and applied it. In U.S. vs. Fortaleza, 12 Phil., 472,
this Court, after quoting Rules 27 and 28 of the "Provisional Law for the
Application of the Penal Law" and section 37, Act No. 183, as the law in force in
force in these Islands providing for cases in which a person may be arrested
without a warrant, said:
These provisions quite clearly set out the powers usually conferred by
American and English law upon "peace officers" including "constables,"
in making arrests without warrants; and since similar powers are clearly
included in the powers conferred upon "agents of authority" in the above
cited articles of the "Provisional Law," there can be no doubt that the
Commission, in imposing the duty of maintaining order and preserving
and protecting life and property within their respective barrios upon
municipal councilors and their lieutenants of barrios, conferred upon such
officials authority to make arrests without warrant not less extensive than
that conferred upon peace officers in Manila in the above-cited provisions
of the Manila Charter. (United States vs. Vallejo, No. 4367, decided by
this court on September 3, 1908; also United States vs. Burgueta, 10 Phil.,
188.) (Emphasis ours.)
The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last
paragraph of the dissenting opinion, does not contain anything about the
implantation in these Islands of the so-called common law rule. In the case of
U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this Court,
following the ruling in U.S. vs. Fortaleza, said:
In a former case we held that officials in these Islands, who, "by direct
provisions of law or by appointment of competent authority are charged
with the maintenance of public order and the protection and security of
life and property," have authority to make arrests without warrant
substantially similar to the authority generally conferred upon "peace
officers" in the United States, and more especially that class of `peace
officers' known to American and English law as constables; and that "the
 provisions of section 37 of Act No. 183" (the Charter of Manila) "quite
clearly set forth the powers usually conferred by American and English
law upon "peace officers" including "constables" in making arrests
without warrants," and provide that they "may pursue and arrest without
warrant, any person found in suspicious places or under suspicious
circumstances, reasonably tending to show that such person has
committed or is about to commit any crime or breach of the peace; may
arrest, or cause to be arrested without warrant, any offender, when the
offense is committed in the presence of a peace officer or within his
view". (U.S. vs. Fortaleza, 12, Phil., 472, 479.)
And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated
the ruling in the previous cases and held:
The powers of peace officers in the Philippines, generally stated, are the
same as those conferred upon constables under the Anglo-American
Common Law. The extent of their authority to make arrests without
warrant and the limitations thereon, as held by the Supreme Court, are as
stated in the language of the Legislature in the Charter of the City of
Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The Administrative
Code (section 2204, edition of 1916; section 2258, edition of 1917)
enjoins municipal policemen to "exercise vigilance in the prevention of
public offenses".
The provisions above quoted of section 37 of Act No. 183 have been incorporated
in section 2463 of the Revised Administrative Code and those of Rules 27 and 28
were substantially incorporated in section 6, Rule 109 of the Rules of Court.
Section 2463 of the Revised Administrative Code reads as follows:
SEC. 2463. Police and other officers Their powers and duties. The
mayor, the chief and assistant chief of police, the chief of the secret
service, and all officers and members of the city police and detective
force shall be peace officers. Such peace officers are authorized ... to
pursue and arrest, without warrant, any person found in suspicious places
or under suspicious circumstances reasonably tending to show that such
person has committed, or is about to commit, any crime or breach of the
peace; to arrest or cause to be arrested, without warrant, any offender
when the offense is committed in the presence of a peace officer or within
his view;
And section 6 of Rule 109 provides:
SEC. 6. Arrest without warrant When lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually committing,
or is about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
These are the only provisions of law in force these Islands which enumerate the
cases in which a peace officer may arrest a person without warrant, and the so
called common law relating to other cases of arrest without warrant cited in the
dissenting opinion has no application in this jurisdiction. Therefore, all the
considerations set forth in the said opinion about the disastrous consequences
which this Court's interpretation of article 125 of the Revised Penal Code will
bring to a law enforcement, because "the entire six hours might be consumed by
the police in their investigation alone," or that "even if the city fiscal be given the
chance to start his assigned task at the beginning of the six hours period, this time
can not insure proper and just investigation in complicated cases and in cases
where the persons arrested are numerous and witnesses are not at hand to testify,"
since "the police is not authorized to round up the witnesses and take them along
with the prisoner to the city fiscal," are without any foundation. Because they are
premised on the wrong assumption that, under the laws in force in our jurisdiction,
a peace officer need not have personal knowledge but may arrest a person without
a warrant upon mere information from other person. "The right to make arrests
without a warrant is usually regulated by express statute, and except as authorized
by such statutes, an arrest without a warrant is illegal." (5 C.J., pp. 395, 396.) And
statutory construction extending the right to make arrest without a warrant beyond
the cases provided by law is derogatory of the right of the people to personal
liberty (4 Am. Jur., p. 17).
The investigation which the city fiscal has to make before filing the corresponding
information in cases of persons arrested without a warrant, does not require so
much time as that made upon a complaint of the offended parties for the purpose
of securing a warrant of arrest of the accused. In all cases above enumerated in
which the law authorizes a peace officer to arrest without warrant, the officer
making the arrest must have personal knowledge that the person arrested has
committed, is actually committing, or is about to commit an offense in his
presence or within his view, or of the time, place or circumstances which
reasonably tend to show that such person has committed or is about to commit any
crime or breach of the peace. And the testimony of such officer on the commission
of the offense in his presence or within his view by the person arrested, or on the
facts and circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient evidence or basis
for the city fiscal to file an information without prejudice to his presenting of their
evidence or witness, if any, during the trial to insure the conviction of the
defendant. If the city fiscal does not believe the testimony of the officer making
the arrest or consider it sufficient, or has any doubt as to the probability of the
prisoner having committed the offense charged, and is not ready to file an
information against him on the strength of the testimony or evidence presented,
there would be no legal reason or ground for him to wait until further evidence
may be secured before dismissing the case against the prisoner, or detaining the
person arrested without warrant without violating the precept of article 125 of the
Revised Penal Code.
After the release of the prisoner, the city fiscal may make or continue the
investigation and file afterwards the proper information against him with the
corresponding court, if the result of the investigation so warrants, in order to
secure a warrant of arrest of the same. Of course, as we have said in our decision
for the purpose of determining the criminal liability of a peace officer detaining a
person for a longer period of time than the six hours prescribed by article 125 of
the Revised Penal Code, "the means of communication as well as the hour of arrest
and other circumstances such as the time of surrender and the material possibility
for the fiscal to make the investigation and file in time the necessary information,
must be taken into consideration." The period originally fixed by our Penal Code
was twenty four (24) hours, and if the city fiscal believes that the period now
prescribed by article 125 of the Revised Penal Code is short, and that the law must
be amended so as to extend it, it would be proper for the interested parties to take
the case to Congress, since it can not be done by judicial legislation.
Motion for reconsideration is denied.
Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.
PERFECTO, J.:
We agree with the above resolution except that which may be at variance with our
concurring opinion in this case and with our written opinion in the case of Lino vs.
Fugoso, L-1159, 43 Off. Gaz., 1214.
BRIONES, M., concurring:
Estoy enteramente conforme con la resolucion. En la opinion concurrente que
dicte en el asunto de Lino contra Fuguso y otros (43 off. Gaz., 1235, 1244) donde
se discutio por primera vea el importante punto legal debatido en el presente
asunto, dije lo siguiente y lo reafirmo en esta ocasion, saber:
Sin discutir la responsabilidad de la Fiscalia por la demora si esta se
puede o no justificar administrativamente es cuestion que no nos compete
considerar ni resolver vamos a limitarnos a comentar y discutir la fase
juridica legal. Esta en orden naturalmente el hacer la siguiente pregunta:
es correcta, es acertada la asercionde que el "Promotor Fiscal de Manila
es un funcionario judicial (judicial officer)," que, por tanto, la entrega al
mismo de la persona de undetenido dentro del periodo de 6 horas
equivale a la entrega a las autoridades judiciales correspondentes (proper
judicial authorities) de que habla el ariticulo 125 del codigo penal
revisado? Creemos que no: no por su letra ni por su espiritu puede
aplicarse por extension la fraseologia de ese articulo al Fiscal de la
Ciudad de Manila o a cualquier otro Fiscal; ese articulo no puede referirse
mas que a un tribunal, a u juzgado, se municipal, sea de primera instancia.
Asi que story de perfecto acuerdo con la ponencia cuando positivamente
sienta la doctrina de que "si bien un arresto puede hacerse sin orden
cuando hay motivos razonalbes apra ello (regla 109, articulo 6,
reglamento de los tribunales), el detenido no puede ser recluido fuera del
periodo prescrito por la ley, a menos que una orden de arresto se obtenga
antes de un tribunal competente" (veanse las autoridades que se citan), y
que "en el presente caso el Fiscal de la Ciudad no tenia autoridad para
expedir ordenes de arresto y carecia de facultad para convalidar tal
detencion ilegal con solo presentar las querellas, o con una orden de su
propia cuenta, ora tacita, ora expresa" (veanse asimismo las authoridades
que se citan).
De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la
ciudad despues del periodo de 6 horas prescrito por la ley los papeles
sobre un detenido arestado sin previa orden al efecto, no por ello se cura
la ilegalidad del arresto y detencion, sino que dicha ilegalidad continua y
persiste hasta que el Fiscal presenta la querella y obtiene una orden de
arresto del tribunal competente, o que, tratandose de delito, mediante la
prestacion de una fianza cuya cuantia se fijare y recommendare por dicho
Fiscal, la policia soltare al detenido, a tenor de lo previsto en el articulo
2460 del codigo administrativo.
Puede ocurrir, sin embargo, que la policia entregue los papeles a la
Fiscalia de la ciudad dentro del periodo de 6 horas, pero que la Fiscalia no
solo deja pasar dicho periodo, sin que transcurren dias, hasta semanas sin
actuar sobre el caso en uno u otro sentido. La cuestion en orden
naturalmente es la siguiente: es legal o ilegal la detencion del arrestado
en tal caso? En otras palabras: queda suspenidod el periodo de 6 horas
durante el tiempo que el Fiscal de la Ciudad tarda en actuar sobre el caso?
La contestacion tiene queser necesariamente negativa. La rigidez., la
inflexibilidad del periodo de 6 horas reza no solo para la policia, sinohast
para cualquier otra agencia o ramo oficial, sin excluir a la Fiscalia de la
ciudad de Manila. Si por cualquier motivo la Fiscalia dejare de actuar
dentro de dicho periodo, el deber de la policia o del que tenga la custodia
del detenido es soltarle, quiera o no quiera el Fiscal, lo recomiende o no
lo recomiende. De otra manera, la restriccion que estatuye la ley a favor
de los detenidos sin previa orden de arresto restriccion que implementa
las garantias de la libertad establecidas en la Constitucion resultaria un
mito. La filosofia de la ley es, a saber: solamente se verifica un arresto sin
previa orden cuando hay motivos razonalbes para ello, v. gr., cuando un
individuo es cogido in fraganti cometiendo un delito. La ley presupone,
por tanto, que el Estado tiene a mano todos los elementos necesarios para
decider que accion ha de tomar dentro del periodo de 6 horas, ya
entregando la persona del detenido a las autoridades judicales
correspondientes mediante la querella procedente, a tenor del articulo 125
del Codigo Penal Revisado: ya poniendole en libertad provisional bajo
una fianza razonable, de acuerdo con el citado articulo 2460 del Codigo
Administrativo; o ya poniendole compoletamente en la calle por falta de
meritos en el caso. Si ninguna de estas cosas puede hacer el Estado en 6
horas no puede ser mas que por dos motivos: o poor que se quiere
cometer una arbitrariedad, o la maquinaria oficial se halla en un
deplorable estado de confusion, indeptitud of impotencia.
Se arguye con enfasis que bajo esta interpretacion la prosecucion del
crimen sufriria un serio quebranto, sobre todo en la Ciudad de Manila;
que materialmente la Fiscalia no puede actuar adecuadamente sobre
algunos casos en el plazo percentorio de 6 horas. Si esto es verdad el
remedio no es infringer la ley como cosa inevitable, rutinaria; el remedio
seria o recabar de la Legislatura que se reforme la ley en la forma que
se estime conveniente, o implementar ya perfeccionar la maquinaria de la
prosecucion criminal, colocandola a la altura de las circunstancias. No
hay nada mas anarquico, mas subversivo y fatal para el principio de la
autoridad y del buen gobierno que el tener leyes que no se cumplen, leyes
que se infringen hasta por los llamados a ponerlas en vigor. "To be or not
to be, that is the question." O existe la ley y hay que cumplirla; o si la ley
es mala o impracticable, hay que reformarla o derogarla. Lo que no se
debe permitir es el disolvente espectaculo de la diaria inobservancia de la
ley.
Se me ocurre ahora aadir otras observaciones en refuerzo de la arriba transcritas.
Creo que ni siquiera es necesario enmendar la ley en el sentido de alargar el
periodo de 6 horas provisto en el articulo 125 del Codigo Penal Revisado. Creo
que con un poco mas de esfuerzo y buena voluntad la presente ley se podria
cumplir en la Ciudad de Manila. La Fiscalia de la Ciudad podria, por ejemplo,
establecer turnos semanales o mensuales, segun como se estime conveniente,
destinando fiscales que se hagan cargo exclusivamente de los casos de individuos
detenidos sin previa orden de arresto, para los efectos de presentar la
correspondiente querella contra ellos, o de soltarlos si se viere que no existen
meritos suficientes para la prosecucion, sin perjuicio desde luego de ulteriores
procedi mientos. Si para realizar satisfactoriamente este trabajo fuese necesario
aumentar el personal de la Fiscalia, yo no creo que el gobierno escatimaria el
dinero para una atencion tan importante.
Esincreible que dentro de 6 horas si hay voluntad de trabajar y sobre todo de
hacer buena y efectiva la ley la Fiscalia no pueda hacr su composicion de lugar
en tales casos, bien para proseguir, bien para no proseguir, de finitivamente o en el
entretanto. Hay que tener en cuenta que se trata de casos en que el individuo es
detenido, ora porque ha sido sorprendido in fraganti cometiendo una infraccion o
un delito, ora poroque se le ha cogido " en lugares sospechosos o bajo
cirunstancias sospechosas, que tiendan razonablemente a demostrar que el mismo
ha cometido o esta para cometer cualquier crimen o atentado contra el orden y la
paz" (E. U. contra fortaleza, 12 Jur. 486). Que es lo que neceista entonces la
Fiscalia en tales casos? No esta alli el testimonio del policia, constabulario o
agente del orden aprehensor? De modo que la cuestion, en ultimo resultado, es que
la Fiscalia tenga o no fe en la integridd y verracidad del agente de la ley. Si la tiene
que motivo hay para no formular inmediatamente la querella y obtener asi del
juzgado la correspondiente orden de arresto? Y si no la tiene que razon hay para
pisotear la libertad individual reteniendo la causa sin accion mas alla de las 6 horas
y causando asi una inecesaria vejacion al ciudadano?
La cuestion se puede simplificar mas todavia. Todo se reduce, en ultimo termino, a
que la Fiscalia pueda contar con la ayda de una policia eficiente, integra y honrada
sobre todo, que persiga el crimen si cuartel, pero que tenga el maximo respeto a los
derechos del ciudadano. Si la Fiscalia puede tener un modus vivendi con una
policcia de semejante tipo y de tales quilates, no hay miedo de que una rigida
observancia del requerimiento legal de 6 horas facilitie la inmunidad de
los tulisanes, bandidos, gangsters y criminales del bajo mundo, y se ponga en
grave peligro la eficaz prosecucion del crimen y la seguridad y sosiego del pueblo.
Dentro de las 6 horas hay tiempo mas que suficiente para meter en cintura a toda la
canalla ... pero por Dios que no se violen ni pisoteen las garantias consitucionales
por miedo a los gansters!
Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si
se verifica una detencion sin previa orden de arresto a medianoche, creo que la ley
estaria cumplida si en las primeras horas de la maana siguiente se tomara
enseguida accion, aungque ello rebassara un poquito el periodo de 6 horas.
Se deniega la mocion de reconsideracion.
TUASON, J., dissenting:
I vote to grant the motion for reconsideration.
In my dissent from the decision of this Court I contended myself with citing my
dissenting opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246, as
grounds for my disagreement. As the present decision has gone farther than that
decision and contains new statements and conclusions, I deem it convenient to
enlarge on my dissent.
The term "judicial officers" has been defined to be, in its popular sense, officers of
a court (Hitt vs. State, Miss. 181, So. 331) and in its strict sense, "judges and
justices of all courts and all persons exercising judicial powers by virtue of their
office." (Settle vs. Van Evrea, 49 N.Y., 280.) The city fiscal is a judicial officer in
both senses. In the popular or larger sense, he is a judicial officer because he is a
part of the legal machinery created for the administration of justice. A prosecuting
attorney, charged with the administration of justice and invested with important
discretionary power in a motion for a nolle prosequi, is a judicial officer. (State ex
rel. Freed vs. Circuit Court of Martin Country, Ind., 14 N.E. 2d 910; State vs. Ellis,
112 N.E., 98, 100; 184 Ind., 307.)
In the strict legal sense, the city fiscal is a judicial officer when making
preliminary examination because he performs the function of a justice of the
peace assuming, as the majority seem to assume, that the conduct of preliminary
examination is a judicial function. By express provision of section 2465 of the
Revised Administrative Code, the city fiscal "shall cause to be investigated all
charges of crimes, misdemeanors, and violations of ordinances, and have the
necessary information or complaints prepared or made against the persons
accused." In addition, section 2, Rule 108, of the Rules of Court states that "every
justice of the peace, municipal judge or city fiscal shall have jurisdiction to
conduct preliminary investigation of all offenses alleged to have been committed,
within his municipality or city, cognizable by the Court of First Instance."
The city fiscal is not any the less a judicial officer simply because he can not issue
warrant of arrest. The power to issue warrant of arrest is not essential ingredient of
a judicial office. This is especially so when, as in cases like the present, the
accused is already under arrest when the city fiscal intervenes and there is no need
of issuing an order of arrest. As to power to commit a detained person to prison, if
that be necessary, the majority are not exactly right when they affirm that the city
fiscal is not clothed with it. I shall come to this later.
However that may be, the city fiscal is a "judicial authority" within the
contemplation of article 125 of the Revised Penal Code. This is the inevitable
result from the fact that in the City of Manila, the city fiscal under the existing
scheme of the government is the only officer to whom the person arrested without
warrant may be presented. The majority opinion admits that the municipal court
and the Court of First Instance of Manila "do not make or conduct a preliminary
investigation proper," and criminal complaints are not filed with them but with the
city fiscal. Reasoning from another angle, we reach the same conclusion. We are
to presume that in using the generic term "judicial authorities" and in
plural instead of more specific word "justice," "judge," or "court", the lawmaker
intended to include in the operation of the article under consideration all officers
who are named to receive the prisoner from the arresting officer. We have to adopt
this construction if we are to give effect to the law and the rule of court I have
cited, and if we are to avoid what I might call, without meaning offense, an
absurdity.
Under no canon of statutory construction is there justification for this Court's
opinion that the police and the city fiscal have to share the six hours fixed in article
125 of the Revised Penal Code. The language, the nature and the object of this
provision unerringly point to the theory that the six hours mentioned in the
Revised Penal Code are meant exclusively for the police officer who made the
arrest. I can discern absolutely no indication of any intention to have the city fiscal
squeeze in his action within this brief period, a period which, in many cases, is not
even sufficient for the police. Read separately or in conjunction with the entire
criminal procedure, article 125 does not furnish the slightest indication of
legislative intent to place the city fiscal and the police under the same category.
Article 125 of the Revised Penal Code was devised for one purpose; section 2465
of the Revised Administrative Code and section 2, Rule 108, of the Rules of Court
for another. Article 125 is a penal provision designed to prevent and punish police
abuses for which the police are noted. The investigation by the city fiscal is strictly
and essentially procedural. It is an integral part of the procedure for bringing the
case to trial.
Little reflection will disclose the disastrous consequences which this Court's
interpretation of article 125 of the Revised Penal Code will bring to law
enforcement. It nullifies the role of the fiscal in the administration of criminal law.
For sheer lack of time, the release of the prisoner arrested without warrant will, in
a great number of cases, be inevitable, unless the city fiscal files charges without
sufficient and adequate investigation. The alternative will be for the city fiscal to
be on a 24-hour watch lest in his sleep the time for him to act might slip by.
But this is only a poor alternative. Regardless of any vigilance on his part the
opportunity for the city fiscal to make the required investigation cannot always be
assured. The law gives the police absolute power to detain a prisoner for six hours
without incurring penal liability. There is no law which obliges the police to take
the prisoner to the city fiscal before the expiration of six hours from the time of
arrest. There can be cases where the entire six hours might be consumed by the
police in their investigation alone, or just in the chasing, collection and
transportation to the police station of the law breakers. This can happen in
tumultuous and other mob offenses in which many people are involved and there is
necessity of screening the guilty ones.
Supposing then that the police should deliver the prisoner or prisoners to the city
fiscal at the last minute of the six hours through the negligence or by force of
circumstances, what time is there for this functionary to comply with his duty?
And even if the city fiscal be given the chance to start his assigned task at the
beginning of the six hour period, can this time insure proper and just investigation
in complicated cases and in cases where the persons arrested are numerous and
witnesses are not on hand to testify? It is well to remember that the police are not
authorized to round up witnesses and take them along with the prisoners to the city
fiscal.
In the light of these consequences I can not imagine that the meaning which this
Court attaches to article 125 of the Revised Penal Code so much as entered the
thought of the legislature. No sound-minded legislature could have intended to
create such situation, which is easy to perceive unless we assume that the
legislative purpose was to tie up the hands of the law and give lawlessness full
sway; unless the legislature wanted to coddle and pamper lawless elements to a
calamitous extreme. When the Court says that the prisoner, after being released at
the end of six hours from the time of his arrest may be rearrested should the city
fiscal find sufficient evidence and prefer charges against him, it takes for granted
that underworld characters and hardened criminals are honorable men who would
keep themselves ready and handy for a second arrest.
The Court says:
To consider the city fiscal as the judicial authority referred to in article
125 of the Revised Penal Code, would be to authorize the detention of a
person arrested without warrant for a period longer than that permitted by
law without any process issued by a court of competent jurisdiction. The
city fiscal may not, after due investigation, find sufficient ground for
filing an information or prosecuting the person arrested and release him,
after the latter had been illegally detained for days or weeks without any
process issued by a court or judge.
What is that "proper process" referred to in the above quoted portion of the
decision? Whatever is meant by "proper process," we should note that there is no
fundamental difference between the proceeding before a justice of the peace and
the procedure followed by the city fiscal. There is nothing important the justice of
the peace may do in the interest of the accused in the cases triable before the Court
of First Instance which the city fiscal may not do. If the city fiscal can not issue an
order of arrest, the justice of the peace himself does not do so to give the detention
the stamp of legality. At least, I am aware of no law which tells him to take this
step, and I can see no material advantage which an accused could derive from this
ceremony. All the justice of the peace does which matters to the accused is admit
him to bail, if the crime be bailable, and proceed to an investigation.
But the city fiscal does just that; and if the necessary to order the commitment of
the prisoner pending ascertainment of his guilt, the city fiscal no less than the
justice of the peace or judge of first instance has the authority also, as I propose to
show later. In actual practice, a person arrested without warrant in a regular
municipality frequently suffers greater injustice and is subject to, and frequently
goes through, greater hardships than his counterpart in the City of Manila. We are
witness to the common spectacle of cases being dismissed on motion of the
provincial fiscal for want of sufficient evidence after the prisoner had been bound
by the justice of the peace over to the Court of First Instance for trial and after he
had languished in jail for months or years. Prisoner's detention in that case is not
considered illegal.
This anomaly seldom takes place in cities where the preliminary investigation is
entrusted to the city fiscal. Rarely in the City of Manila is a case dropped for
insufficiency of evidence after it has been determined in a preliminary
investigation that the prisoner should be held for trial. On the whole, the method
by which the preliminary investigation is conducted by the prosecuting attorney is
more conducive to efficiency, minimizes or eliminates conflicts of opinion in the
existence of probable cause, and better insures prompt dispatch of criminal cases
to the lasting benefit of the prisoner. Only physical impossibility, as I understand
it, is in the way for the adoption of this method throughout the country.
It is a mistake, in my humble judgment, to confuse a prisoner's detention during
the six-hour period fixed in article 125 of the Revised Penal Code and his
continued detention after he is turned over to the city fiscal. As I have said, article
125 regulates the time within which a police officer may hold the prisoner under
his responsibilty, and it applies to the police alone. It will hardly be contended that
this article, or any other law, or the constitution limits the period within which a
prisoner may be detained after he is delivered to the justice of the peace. If that is
so, and since the city fiscal acts in lieu of a justice of the peace, there is no sound
basis, legal or practical, for denying to the former the same time and the same
freedom of action that is enjoyed by the latter.
By the same token, there is no sound reason for denying to the proceeding by the
city fiscal the same attributes which adhere to the proceeding before the justice of
the peace. After the arresting officer produced the prisoner before the city fiscal,
the law takes its course in the same manner that it does when the examining officer
is the justice of the peace or judge of first instance. From that time the arresting
officer ceases to have any control over the prisoner save to keep him in custody
subject to the orders of the city fiscal. The police step out and the law steps in and
extends to the prisoner the mantle of protection against inquisitory examination by
the police. From that time on he enjoys the rights granted by law to all accused
persons the right to give bail and the right to testify freely uninfluenced by any
fear of violence or other forms of maltreatment. The danger envisioned by article
125 of the Revised Penal Code is past.
The proceeding before the city fiscal does not lose its character of due process of
law by its being conducted by the city fiscal instead of a judge. For one thing,
preliminary investigation is not a trial. It is a constitutional right. It is purely a
matter of statutory regulation. (Potenciana Dequito vs. Hugo O. Arellano et al.,
G.R. No. L-1336; 32 C.J.S., 456.) A judicial proceeding which lies within the
power of the legislature to provide or withhold without infringing the fundamental
law may be placed in the hands of any officer other than a judge.
The jurisdiction to make a preliminary examination or investigation is not even
considered judicial. Judges who perform this function do not do so as judicial
officers. Municipal executives here and in the United States are conferred this
power. "The power to examine and to commit persons charged with crime is not
judicial, but is one of the duties of the conservators of the peace, and it may be,
and usually is, vested in persons other than courts, as, for instance, justices of the
peace or police magistrates, or persons exercising jurisdiction analogous to that
exercised by justices of the peace, or who are ex officio justices of the peace, such
as mayors, notaries public, or court commissioners. Power to hold preliminary
examinations may be exercised by the United States commissioners, and United
States district judges who, while making the preliminary examination, exercise the
powers of commissioners only." (16 C.J., 319-320.)
There is no basis for the fear that "the city fiscal may not, after due investigation,
find sufficient ground for filing an information or prosecuting the person arrested
and release him, after the latter had been illegally detained for days or weeks
without any process issued by a court or judge." This statement overlooks the
consistent and general practice heretofore followed with clear, express statutory
sanction. Section 2640 of the Revised Administrative Code authorizes the chief of
police of the City of Manila "to take good and sufficient bail for the appearance
before the city court of any person arrested for violation of any city ordinance,"
while in cases of violation of any penal law, according to the same article, the
fiscal of the city may, and does, recommend and fix the bail to be required of the
person arrested. Power to fix bail necessarily implies power to recommend or
order the detention of the prisoner if bond is not given. This in its working is no
more nor less than the power to commit an accused to prison pending investigation
of this case, power which the majority erroneously say is not possessed by the city
fiscal.
The constitutional and statutory provisions and rules cited by the majority are of
general application which are good only in the absence of specific enactments. The
controlling provisions in the case at bar are sections 2460 and 2465 of the Revised
Administrative Code and section 2, Rule 108, of the Rules of Court.
The decision further says:
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person, except
in those cases expressly authorized by law. What he or the complainant
may do in such case is to file a complaint with the city fiscal of Manila, or
directly with the justice of the peace courts in municipalities and other
political subdivisions. If the city fiscal has no authority, and he has not, to
order the arrest of a person charged with having committed a public
offense even if he finds, after due investigation, that there is a probability
that a crime has been committed and the accused is guilty thereof, a
fortiori a police officer has no authority to arrest and detain a person
charged with an offense upon complaint of the offended party or other
persons even though, after investigation, he becomes convinced that the
accused is guilty of the offense charged.
I do not think the foregoing paragraph is relevant to the instant case. We are not
dealing with the authority of a police officer to make arrest without warrant. There
is no question raised against the legality of the petitioners' arrest. Our problem
concerns the time in which the city fiscal may make his investigation and the
scope of his power.
Assuming the above-quoted statement to be pertinent to the issues, the same can
not, in my humble view, pass unchallenged. Under certain, well-defined
circumstances, an officer may and constantly does make arrests without a court
order, with or without complaint. An officer in good faith may arrest without
warrant when he believes that a person is guilty of a crime, and his belief rests on
such grounds as would induce an ordinarily prudent and cautious man, under the
circumstances, to believe likewise. (6 C.J.S., 596.) This practice is not derived
from any express authority but on the necessity of catching law violators before
they disappear and hide. I have not come across any law naming specific offenses
for committing which the offenders shall be arrested without court orders.
It is also a general principle of law that an officer need not necessarily have
personal knowledge of the facts constituting the offense himself, in the sense of
having seen or witness the offense himself, but he may, if there are no
circumstances known to him which materially impeach his information, acquire
his knowledge from information imparted to him reliable and credible third
persons, or by information together with other suspicious circumstances. (Id., pp.
599, 600.) This principle ought to serve as a qualification to the ruling laid down
by this Court, that "a peace officer has no power to arrest a person without a
warrant upon complaint of the offended party or any other person." Under the rule
I have quoted, a police officer certainly may arrest a person pointed to him as
having committed a crime provided that the information or complaint comes from
a reliable source and under circumstances as to make an ordinary reasonable man
to believe it to be well-founded. When the victim of a robbery or aggression, for
example, should subsequently spot the criminal and request an officer to arrest
him, the officer would not have to seek or wait for a warrant of arrest before
detaining the man, provided again that there was good ground to believe the truth
of the accusation.
This is a common law rule implanted in the Philippines along with its present form
of government, a rule which has been cited and applied by this Court in a number
of cases. (U.S. vs. Santos, 35 Phil., 853; U.S. vs. Batallones, 23 Phil., 46; U.S. vs.
Samonte, 16 Phil., 516.)
Padilla, J., concurs.
SUPPLEMENTARY
TUASON, J., dissenting:
When I filed my dissent from the decision of the Court on the occasion of the
denial of the motion for reconsideration, it was my understanding that there was
going to be only a minute resolution. I make this remark not as a complaint but as
my explanation for writing my dissent in advance of the reasoned resolution. Even
then I would contend myself with resting my dissent on what I have already stated
did the resolution contain new propositions to be answered and disclose
misunderstanding of some of many statements to be cleared. As this is in the
nature and reply, topics will be treated without regard to continuity of thought.
The resolution says that article 30 of the Provisional Law for the Application of
the Penal Code in the Philippines has been repealed by section 17 of Rule 109, but
that section 31 is still in force except the last sentence. And so, according to the
resolution, is section 2 of Act No. 194.
Without discussing the materiality of those laws, I disagree that they are still in
effect. Like article 30, article 31 of the Provisional Law and section 2 of Act No.
194 deal with procedure in justice of the peace courts in general covered by the
new Rules of Court. The Rules of Court, in the words of their introductory section,
concern "pleading, practice and procedure in all courts of the Philippines, and the
admission to practice law therein." These Rules are complete revision and a
complete re-enactment of the entire field of procedure, and there is every reason to
believe that they were intended to replace, with some exceptions, all previous laws
on the subject, especially Spanish laws which had long been out of harmony with
the new mode of pleading and practice. If the last sentence of article 31 is
repealed, as the resolution says, I see no valid ground for not holding the other
parts of that article repealed so. "Where a later act covers the whole subject of
earlier acts, embraces new provisions, and plainly shows that it was intended, not
only a substitute for the earlier acts, but to cover the whole subject then considered
by the legislature, and to prescribe the only rules in respect thereto, it operates as a
repeal of all former statutes relating to subject matter. The rule applies not only
where the former acts are inconsistent or in conflict with the new act, but also even
where the former acts are not necessarily repugnant in express terms, or in all
respects, to the new act." (59 C.J., 919-920.) "While, as a general rule, implied
repeal of a former statute by a later act is not favored, yet `if the later act covers
the whole subject of the earlier act and is clearly intended as a substitute, it will
operate similarly as a repeal of the earlier'." Posadas vs. National City Bank of
New York, 296 U.S., 497; 80 Law ed., 351.)
As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. Cruz,
decided on May 30, 1939, and cited in the resolution, is no authority for the
opinion that no law has been enacted amending or repealing section 2 of Act No.
192.
But this rule of implied repeal holds good only as regards laws of general
application. Another well known rule of the statutory construction tells us that
preliminary investigations in Manila and other chartered cities are to be excluded
from the operation of the Rules of Court. Such investigations are provided for the
special enactments which, because of their special nature and limited application,
must be excepted from and prevail over the general provisions. "When the
provisions of a general law, applicable to the entire state, are repugnant to the
provisions of a previously enacted special law, applicable in a particular locality
only, the passage of such general law does dot operate to repeal the special law,
either in whole or in part, unless such appeal is provided for by express words, or
arises by necessary implication. An intention to repeal local acts generally is not
intolerable from the fact that the general acts specifically excludes one locality
from its operation." (59 C. J. . 934.) There is no apparent intention in the Rules of
Court to repeal the laws under which preliminary investigations in Manila have to
be conducted by the city fiscal. The contrary contention is evidenced by section 2
of the rule 108, which provides that "Every justice of the peace, municipal judge or
city fiscal shall have jurisdiction to conduct preliminary investigation of all
offenses alleged to have been committed within his municipality or city,
cognizable y the Court of First Instance," (Espiritu vs. De La Rosa [July 31, 1947],
L-1156, 45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22, 1941], 40 Off. Gaz., 13th
Supp., p. 13.) In the first of these cases, Mr. Justice Padilla, speaking for the court,
categorically held that the Rules of Court had not repealed and supplanted the
provisions of the Revised Administrative Code regarding the power and authority
of the City Fiscal to conduct preliminary investigation." And in Hashim vs.
Boncan, the Court, through Mr. Justice Laurel, said:
The framers of the Rules could not have intended to brush aside these
lessons of experience and to tear down an institution recognized by law
and decision and sanctioned by years of settled practice. They could not
have failed to keep intact in effective machinery in the administration of
criminal justice, as expeditious and simple as any reform they have
infused into the new Rules.
The term "proper court or judge" in section 17, Rule 109, of the Rules of
Court1 should be interpreted to mean, in the case of Manila, city fiscal, under the
last mentioned canon of interpretation. In Manila, the city fiscal performs the
duties devolving on justices of the peace in regular municipalities in the conduct of
preliminary investigations, and all criminal charges by the police and offended
parties are filed with him. And it is admitted that prisoners arrested without
warrant in Manila may be taken only to the city fiscal by the arresting officer. Let
it be noted also in this connection that section 17 of Rule 109 regulates the taking
of persons arrested to the court or judge, not the filing of complaint.
In view of this circumstances; in view of the fact that neither the judges of first
instance nor the municipal judges of Manila are authorized to conduct preliminary
hearings other than the purpose of determining the amount of bail (section 2474 of
the Revised Administrative Code), the result of applying section 17 of Rule 109 to
Manila would be virtually to eliminate preliminary investigation in this city of
persons arrested without a warrant. The decision creates a vacuum, a situation
which this Court on another occasion refused to countenance in the forceful
language above quoted in Hashim vs. Boncan et. al. There, the Court continued:
To sustain the theory of repeal is to wipe out these advantages. Not only
this. If neither section 11 nor section 13 of Rule 108 is applicable to the
preliminary investigation conducted by the City Fiscal, as we have above
shown, and if existing legislation thereon is to be deemed repealed, then
the matter would be left uncovered by rule or law. There would thus be a
void crying for urgent reform. There would be no such void if the old and
tried procedure is kept in being, untouched by the new Rules. Withal, our
own knowledge of the history of this portion of the Rules here involved
does not warrant an interpretation not contemplated when we drafted and
deliberated upon these Rules. And while, perhaps, the language could
have been clearer and the arrangement made more logical, consideration
to expediency and the avowed purpose of preliminary investigation point
to the already trodden path hereinabove indicated.
The resolution has interpreted article 125 of the Revised Penal Code with
meticulous adherence, at best, to its latter, and open disregarded, at worst, of its
spirit and of the pernicious results that follow from such interpretation. The
construction which the majority give to the term "judicial authority" makes it
impossible for the city fiscal to perform his assigned duties with the consequence
that for lack of time, malefactors will have to be turned loose before proper
investigation in conducted, or prosecution filed on insufficient evidence, in many
cases.
Nevertheless, I am not pleading, in the case, for a departure from the letter of the
law. I merely submit that the city fiscal, as was emphasized in my dissent from the
decision, is a judicial officer or judicial authority both in the popular and the legal
sense of the term, and that it is unjust, unwarranted by any rule of interpretation,
absolutely disastrous to the administration of criminal law to identify the city fiscal
with the police, forcing him to file an information or release the prisoner within the
six hours intended for the arresting officer alone. I do not contend that the term
"judicial authority" be expanded beyond its literal and legal meaning, although if
necessary this might be done to carry out the obvious purpose of the law, but I take
exception to the unjustified restriction and limitation placed on the meaning of
"judicial authority" which not only does violence to the letter and spirit of article
125 of the Revised Penal Code but leads to an extremely anomalous, not to say
impossible, situation. We do not have to look outside for the meaning of "judicial
authority," as a simple reading of article 125 of the Revised Pena Code and section
2474 of the Revised Administrative Code yields the clear intent of the legislature.
This intent, as manifested in laws that have been amended by section 2465 and
section 2474 of the Revised Administrative Code, crystalized in a system of
practice that have received "the imprint of judicial approval" in various decisions
of this Court. (U. S. vs. McGoven, 6 Phil. 261; U. S. vs. Ocampo, 18 Phil. 122;U.
S. Carlos, 21 Phil. 553; Hashim vs. Boncan, ante; Espiritu vs. De la Rosa, ante.)
The resolution, as a solution to the quandary in which it places the city fiscal,
would have him go to Congress. But, as I trust I have shown, the laws on the
subject need no supplementation and implementation. They have no gaps to be
filled or ambiguities to be cleared. The loopholes exist only as a direct result of
this Court's new ruling. Section 2474 of the revised Administrative Code and its
predecessors have operated smoothly, without a hitch for nearly half a century.
Not even when the arresting officer had 24 hours to take arrested persons to a
judicial authority was it ever imagined, much less asserted, that the city fiscal had
to borrow his time from the police.
The resolution in laying down the rule that the city fiscal has no power to issue
warrant of arrest or "an order or commitment of release by a written warrant
containing the ground on which it is based," thinks it is necessary to advert, "in
justice to the city fiscal," that this official does not pretend to possess such
authority, since it is only in the dissenting opinion, it says, where the claim is
made.
At the outset I deny that I attributed to the city fiscal power to issue warrant of
arrest; and did not say in an unqualified manner that he has power to issue
commitment. On the first point, what I said was an implicit aknowledgment of the
opposite. Let me quote from the second paragraph of page 2 of my dissenting
opinion what I did say:
The city fiscal is not any the less a judicial officer simply because he can
not issue warrant of arrest. The power to issue warrant of arrest is not
essential ingredient of a judicial office.
On the power to commit prisoners, the same paragraph of my opinion shows what
I said.
As to the power to commit a detained person to prison, if that be
necessary, the majority are not exactly right when they affirm that the city
fiscal is not clothed with it. It shall come to this later.
And taking the matter up again on page 11, I said:
Section 2460 of the Revised Administrative Code authorizes the chief of
police of the City of Manila "to take good and sufficient bail for the
appearance before the city court of any person arrested for violation of
any city ordinance," while in cases of violation of any penal law,
according to the same article, the fiscal of the city may, and does,
recommended and fix the bail necessarily implies power to recommend or
order the detention of the prisoner if bond is not given. This i
its working is no more nor less than the power to commit an accused to
prison pending investigation of his case, power which the majority
erroneously say is not possessed by the city fiscal.
There is nothing in this statement any outright affirmation that the city fiscal has
power to issue commitment papers. There is, on the contrary, an implied admission
that the power, as it is ordinarily exercised by a judge or court, does not exist. I
merely submitted as my personal opinion and interpretation of section 2460 of the
Revised Administrative Code, regardless of what the city fiscal thinks, that it
confers upon the latter official a power which, performed in conjunction with the
power of the chief of police, amounts in its practical operation to a power to
commit a man to prison. And I said this in answer to the sweeping assertion
(which apparently was made in the decision in complete oblivion of section
2460, supra), that to give the city fiscal unlimited time might result in injustice,
since, the decision says,
The city fiscal may not, after due investigation, find sufficient ground for
filing an information or prosecuting the person arrested and release him,
after the latter had been illegal detained for days or weeks without any
process issued by a court or judge.
I intended to emphasize by citing section 2460 of the Revised Administrative
Code, that a prisoner could secure his released, pending investigation of his case,
in the same manner and with the same facilities that he could if the complaint or
information had been filed with a court. In citing and stating my interpretation of
section 2460 of the Revised Administrative Code, I wished to show what I
considered an erroneous ruling that
If the city fiscal has any doubt as to the probability of the defendant
having committed the offense charged, or is not ready to filed the
information on the strength of the testimony or evidence presented, he
should release and not detain the person arrested for a longer period than
that prescribed in the Penal Code.
The majority come back with the assertion that the provisions of section 2460 of
the Revised Penal Administrative Code2
do not authorize, either expressly or by implication, the city fiscal to
order the detention of the prisoner if the bond is not given, not only
because they refer to the power of the chief of police of Manila and not of
the city fiscal, but because the only incidental authority granted to the
 latter is to recommend the granting of the bail by the chief of police may
release the latter on bail.
I disagree again. I do not believe that a provision is rendered nugatory by the mere
fact that it is foreign to the subject of the main provision or to the title or caption of
the section, if otherwise the language is clear. The title or caption is important only
in determining the meaning of laws which are ambiguous and uncertain. The
provision of section 2460 of the Revised Administrative Code quoted in the
resolution does not suffer from such infirmity.
In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso
relates to the chief of police, conferring on him power of the same nature as does
the enacting clause, with the only difference that, in cases of violations of a
municipal ordinance the chief of police acts independently, on his own
responsibility, while in cases of violations of a penal law, he acts with the advice
of the city fiscal and the latter fixes the amount of bail. The intervention of the city
fiscal was only inserted, in my opinion, in view of the gravity of the latter class of
cases.
As to the other reason given in the resolution why, it says, continued detention of a
prisoner beyond six hours is not authorized namely, that the authority granted to
the city fiscal to recommend the granting of bail by the chief of police and to fix
the amount of bail to be required of the person arrested, is only incidental my
comment is that, whether the power to take bail or release prisoners belongs to the
city fiscal or the chief of police, is inconsequential. To my mind, the important
point is that the accused, as the resolution admits, may be released on bond. From
this power, irrespective of who possess it, is implied the power to keep the
prisoner under detention if he does not file a bond.
When the resolution concludes that if no bond is given by the person arrested,
"neither the chief of police, who is only authorized to release on bail, has power to
detain the person arrested for more than six hours; not the city fiscal, who is
empowered to fix and recommend the bail to the chief of police has authority to
release person arrested in violation of penal law," I can not follow. In a nutshell,
the majority's reasoning, as I understand it, is that the law authorizes the city fiscal
to recommend and fix the bail "in order that the chief of police may release the
latter (prisoner) on bail," but that if the prisoner does not put up a bond to be set at
large just the same. The filing of bail is not a meaningless gesture which may be
taken advantage of by an accused at pleasure with the same effect. The privilege to
put a bond extended to an accused must be the price or condition of his temporary
release. The law does not have to say in so many words that if he does not put a
bond he would be kept in confinement in order that we may be warranted in
reaching this result.
The resolution says that "the purpose of the law in empowering the chief of police
of Manila to release the prisoner if he puts up a bail, is to relieve the officer
making the arrest the necessity of taking the prisoner to the city fiscal, and the
latter from filing an information with the proper courts within the period of time
prescribed by law."
I have reflected closely on the meaning of this statement to be sure that I did not
misunderstand it. Unless I still fail to grasp the idea, I think the statement is self-
annulling and self contradictory. The filing of bail cannot relive the arresting
officer from the necessity of taking the prisoner to the city fiscal for the simple
reason that such bail, in cases of violations of penal laws, can be filed only on
recommendation of, and its amount can be fixed by, the city fiscal. In other words,
the prisoners necessarily has to be taken to the city fiscal before any bond can be
executed. And it would be underestimating the intelligence of an accused to expect
him to file a bond within six hours from the time of his arrest if he is aware that, if
at the end of those hours the city fiscal had not preferred any charges against him
and no order of commitment had been issued by the proper judge, he (accused) had
to be released. In the face of the latter theory, no prisoner would, even if he could,
perfect a bond within six hours knowing that if he did not, he would be a free man,
at leased temporarily, within what remains of six hours, while if he did, the bond
would enable the city fiscal to take his time to file case against him in court.
The gravamen of the court's argument seems to be that a commitment by a court or
judge is essential to validate the detention beyond the time specified in the Revised
Penal Code. I do not share this opinion. Neither such commitment by a judge nor a
formal complaint is required by the constitution in order that a person may
lawfully be kept in jail pending investigation of his case. An opportunity to file a
bond in reasonable amount satisfies the constitutional demands. Nor does the bail
have to be fixed or granted by a court. Sheriffs and police officers have been
authorize by statutory enactments in other jurisdiction to take bail. At least one
court has gone so far as to uphold, "independently of statue, a practice of long
standing on the part of the sheriff to take bail in criminal cases of prisoners
committed for not filing bail, and release them from confinement." (Dickinson vs.
Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of the Revised
Administrative Code, the chief of police of Manila, as already shown, is allowed to
take bail by himself in cases violation of a municipal ordinance and with the
intervention of the city fiscal in other cases. Under this provision and this practice,
a detention prisoner arrested without warrant is not deprived of any privilege of
benefit guaranteed by the constitution. The lack of formal complaint does not in
the least prejudice him or deprive him of any benefit enjoined by his counterparts
in the provinces. On its legal aspect, let it be observed that all the proceedings
conducted by the city fiscal is a preliminary and summary inquiry which is purely
a matter of statutory regulation. Preliminary investigation by the prosecuting
attorney when authorized by law is due process no less than one conducted by a
judge. It may be suppressed entirely, and if it may be suppressed, it may be
entrusted to any officer, provided only the constitutional right to give bail is
carefully safeguarded. As this Court has said in Hashim vs. Boncan, supra, and
U.S. vs. Ocampo, supra:
The prosecuting attorney of the city of Manila is presumed to be as
competent to conduct a preliminary investigation as the average person
designated by law to conduct a "preliminary examination" under the
provisions of General Orders No. 58. He is a sworn officer of the
court, and the law imposes upon him the duty of making such
investigations. For such purpose the legislature may designate whom it
pleases within the judicial department.
The resolution has taken pain to cite and explain in detail what it says are the laws
on arrests in the Philippines, and takes me to task for quoting from 6 Corpus Juris
Secundum, 599-600 and citing the decisions of this Court. We are told the effect
that the excerpts from my dissenting opinion, quoted on page 16 of the resolution
are without any foundation because, it is said,
they are premised on the wrong assumption that, under the laws in force
in our jurisdiction, a place officer need not have personal knowledge but
may arrest a person without a warrant mere information from other
person.
The resolution assumes that those excerpts are predicated on what I call the
common law rule, on Corpus Juris Secundum, and on decisions of the Supreme
Court.
I commend a reading to my dissenting opinion. It will be seen that I did not base
on those laws, rules or decisions my statements, "The entire six hours might be
consumed by the police in their investigation alone;" "Even if the city fiscal be
given the chance to start his assigned task at the beginning of the six hour period,
this time can not insure proper and just investigation in complicated cases and in
cases where the persons arrested are numerous and witnesses are not on hand to
testify," and "The police is not authorized to round up witnesses and take them
along with the prisoner to the city fiscal." It will be seen that far from using as my
premise those laws, rules and decisions, which I said contain in brief outlines the
powers of police officers to make arrests, I said clearly on page 12 of my
dissenting opinion:
I do not think the foregoing paragraph is relevant to the instant case. We
are not dealing with the authority of the police officer to make arrest
without warrant. There is no question raised against the legality of the
prisoner's arrest. Our problem concerns the time period within which the
city fiscal may make his investigation, and the scope of his power.
It was the majority decision which brought the question of the authority of the
police to make arrests into the discussion. I only met the decision on its own
territory though I regarded that territory as outside the legitimate circle of the
present dispute. I cited Corpus Juris Secundum and decisions of this Court, which
I said are derived from common law, to refute the statement,
a fortiori, a police officer has no authority to arrest and detain a person
charged with an offense upon complaint of the offended party or other
person seven though after investigation, he becomes convinced that the
accused is guilty of the offense charged.
I especially wanted to express my disagreement with the thesis in the decision that
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person, except
in those cases expressly authorized by law.
It was my humble opinion that the rules I cited and the rules on which the
decisions of this Court are predicated, were general provisions of law applicable to
varying and changed circumstances, and I wanted to deny the insinuation that there
were, or there might be, arrests without warrant "expressly authorized by law"; so I
countered that "I have not come across any law naming specific offenses for
committing which the offenders shall be arrested without court orders." This is my
concept of express provisions authorizing arrests without a warrant.
Section 6 of Rule 109, section 2463 of the Revised Administrative code, and the
provisional Law on the subject of arrest, cited in the resolution in an attempt to
show the error of my citations, can not be a source of comfort to the majority.
Rather, I should think, they reinforce my position, for I believe that the rules and
decisions I cited the rules and laws called to our attentions as the real thing, are in
substantial agreement. My mistake was in not citing, myself, Rule 109, section 6,
of the Rules of Court, section 2463 of the Revised Administrative Code, and the
Provisional Law. I might have found and cited them had I thought the matter
worthy of more than a passing notice.
Now that the resolution has gone into this subject at length, I shall devote a few
more lines to it at the peril of tiring the reader on what I believe an impertinent
topic.
My citation from Corpus Juris and my comment that "this is a common law rule
implanted in the Philippines along with its present form of government, a rule
which have been cited or applied by this Court in a number of case," has met with
decision. I am informed that my quotation is "not a general principle of law or
common law rule implanted in the Philippines"; that "it is the summary of the
ruling of several states courts based on statutory exceptions of the general rule."
I do not think I wise wide off the mark when I said that the common law rule has
been transplanted to this country along with the present form of government and
that the rules and decisions I have quoted spring from the common law. And the
majority are not closer to the marked when they affirmed that my quotation from
Corpus Juris Secundum, and section 2463 of the Revised Administrative Code are
purely statutory creation.
There was common law before there were statutes. Common law in England and
in the U. S. preceded statement statutes and constitutions. Statutes and
constitutions in matters of arrest came afterwards, restating, affirming, clarifying,
restricting or modifying the common law.
The English common law has been adopted as the basis of jurisprudence
in all the states of the Union with the exception of Louisiana "where the
civil law prevails in civil matters." (11 Am. Jur., 157.) And
in England, under the common law, sheriffs, justices of the peace,
coroners, constables and watchmen were entrusted with special powers as
conservators of the peace, with authority to arrest felons and persons
reasonably suspected of being felons. Whenever a charge a felony was
brought to their notice, supported by reasonable grounds of suspicion,
they were required to apprehend the offenders, or at the least to raise hue
and cry, under the penalty of being indicted for neglect of duty.
See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous
cases therein cited. It is a footnote appended o the statement of a common law
principle which of the same tenor as that just noted. Treatises on arrest not
infrequently start with a statement of the common law rule and speak of statute
and constitutions in the sense I have mentioned. Moran's Commentaries on the
Rules of Court mention of the common law. (Vol. 2, p. 577) in connection with the
power to make arrest without a warrant.
The doctrine taken from 5 C. J., 395-396-that "the right to make arrest without a
warrant is usually regulated by express statute, and, except as authorize by such
statutes, an arrest without a warrant is illegal" is not at war with the proposition
that the authority of peace officers to make arrest originated at common law and
that constitutions and statutes merely re-stated and defined that the authority with
greater precision, naming the officers who may make arrest, the grades of offenses
for, and the circumstances under, which arrest may be effected, etc. Arrests made
by officers not designated or under circumstances not coming within the terms of
the statute or constitution are illegal.
Even then, broad constitutional or statutory inhibition against search and seizure of
property or persons without a warrant has exceptions, as can be inferred from the
two sentences preceding the above sentence quoted in the resolution. This
exceptions are cases where the public security has demanded the search and
seizure.
Well established exceptions to this rule have been long recognized in
cases of felony, and of breaches of the peace committed in the presence
of the party making the arrest. (5 C. J., 395.)
Arrests under such circumstances are authorized in spite of statutes and
constitutions. The power to make such arrest is deeply rooted in the unwritten or
common law, which "includes those principles, usage and rules of action
applicable to the government and security of person and property which do not rest
for their authority an any express or positive declaration of the will of the
legislature." Although acting at his peril, the powers to arrest on" probable cause
of suspicion" even by a private person are "principles of the common law,
essential to the welfare of society, and not intended to be altered or impaired by
the Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)
I have remarked that there is no fundamental difference between my citations, on
the other hand, and section 6 of Rule 109 and section 2463 of the Revised
Administrative Code, Cited by the majority of the Court, on the other hand. There
is only a difference in phraseology. The very case of U. S. vs. Fortaleza relied
upon in the resolution speaks of barrio lieutenant's power to make arrest as not
inferior to that usually conferred on peace officers known to American and English
law as constables.
The resolution quotes this from 5 C. J., 404:
It is a general rule, although there are statutory exceptions and variations
that a peace officer has no right to make an arrest without a warrant upon
mere information of a third person.
This is only a part of the sentence. The omitted portion is more important from my
point of view and contradicts the point of view and contradicts the point stressed
by the majority. The complete sentence in.
 It is a general rule, although there are exceptions and variations, that a
peace officer has no right to make an arrest without a warrant, upon mere
information of a third person or mere information of committed, that
right being limited to arrests for offenses of the grade of felony, as
elsewhere shown.
It will be noticed that the quoted portion relates to arrest for misdemeanor. For
further proof, I invite attention to the title of the Section on page 401, paragraph
(a), which reads: "For Misdemeanor aa. In General." Let it be noted that the
power to arrest for misdemeanor is different from, and more restricted than, the
power to arrest for felony, as is further demonstrated by the last clause of the full
sentence above quoted. This clause refers us back to section 30, p. 399, which
says:
"At common law, (here again common law mentioned), and subject to the
provisions of any applicatory statute, and subject officer may arrest, without a
warrant, one whom he has reasonable or probable grounds to suspect of having
committed of felony, even though the person suspected is innocent, and generally,
although no felony has in fact been committed by any one, although, under some
statutes a felony must have been actually committed, in which case an may arrest,
without a warrant, any person he has reasonable cause for believing to be the
person who committed it."
As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised
Administrative Code, like the authorities I have cited, do not limit the power of a
police officer to make arrest tho those cases where he saw with his own eyes or
heard with his own ears the commission of an offense. Section 6 of a Rule 109 and
section 2463 of the Revised Administrative Code empowers police officers.
to pursue and arrest, without warrant, any person found in suspicious
places or under suspicious circumstances reasonably tending to show that
such person has committed, or is about to commit, any crime or breach of
the peace,
and section 6 of Rule 109 authorizes a peace officer or a private person to make
arrest when
an offense has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it
Rule 28 of the Provincial Law itself empowers judicial and administrative
authorities "to detain, or cause to be detained person whom there is reasonable
ground to believe guilty of some offense" or "when the authority or agent
has reason to believe that unlawful act, amounting to a crime had been
committed."
To make arrest on suspicion or on information is not new; it is an everyday
practice absolutely necessary in the of public security and firmly enshrined in the
jurisprudence of all civilized societies. The power to arrest on suspicion or on
reasonable ground to believe that a crime has been committed is authority to arrest
on information. Information coming from reliable sources maybe, and it often is,
the basis reasonable ground to believe that a crime has been committed or of
reasonable ground of suspicion that a person is guilty thereof. Suspicion
reasonable ground and information are interviewed within the same concept.
The necessary elements of the ground of suspicion are that the officer acts
upon the belief of the person's guilt, based either upon facts or
circumtances within the officers own knowledge, or information imparted
by a reliable and credible third person provided there are no
circumstances known to the officer sufficient to materially impeach the
information received, It is not every idle and unreasonable charge which
will justify an arrest. An arrest without a warrant is illegal when it is
made upon mere suspicion or belief, unsupported by facts, circumstances,
or credible information calculated to produce such suspicion or belief.
Failure to take these principles into account has led to the belief that:
The investigation which the city fiscal has to make before filing the
corresponding information in cases of persons arrested without a warrant,
does not require so much time as that made upon a complaint of the
offended parties for the purpose of securing a warrant of arrest of the
accused. In all cases above enumerated in which the law authorizes a
peace officer to arrest without warrant, the officer making the arrest must
have personal knowledge that the person arrested has committed, is
actually committing, or is about to commit an offense in his presence or
within his view, or of the time, place or circumstances which reasonably
tend to show that such person has committed or is about to commit any
crime or breach of the peace. And the testimony of such officer on the
commission on the offense in his presence or within his view by the
person arrested, or on the facts and circumstances that tend reasonably to
show that said person has committed or is about to commit an offense,
would be sufficient evidence or basis for the city fiscal to file an
information without prejudice to his presenting of other evidence of the
defendant. (Pp. 16-17 of the Resolution.).
Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised
Administrative Code, as well as the authorities I have quoted, show the fallacy of
the idea that the arresting officer knows, or should know, all the facts about the
offense for the perpetration, or supposed perpetration, of which he has made the
arrest. The resolution fails to realize that in the great majority of cases an officer
makes arrest on information or suspicion; that "suspicion implies a belief or
opinion as to the guilt based upon facts or circumstances which DO NOT
AMOUNT TO PROOF," and that information and suspicion by their nature require
verification and examination of the informers and other persons and
circumstances. While an officer may not act on unsubstantial appearances and
unreasonable stories to justify an arrest without a warrant, obviously in the interest
of security, an officer who has to act on the spot and cannot afford to lose time, has
to make arrest without satisfying himself beyond question that a crime has been
committed or that the person suspected is guilty of such crime. A police officer can
seldom make arrest with personal knowledge of the offense and of the identity of
the person arrested sufficient in itself to convict. To require him to make an arrest
only when the evidence he himself can furnish proves beyond reasonable doubt the
guilt of the accused, would "endanger the safety of society." It would cripple the
forces of the law to the point of enabling criminals, against whom there is only
moral conviction or prima facie proof of guilt, to escape. Yet persons arrested on
necessarily innocent so that the prosecuting attorney should release them. Further
and closer investigation not infrequently confirm the suspicion or information.
The majority of arrests are not as simple as a police officer catching a thief
slipping his hand into another's pocket or snatching someone else's bag, or
suprising a merchant selling above the ceiling price, or seizing a person carrying
concealed weapons. Cases of frequent occurrence which confront the police and
the prosecution in a populous and crime-redden city are a great deal more
complicated. They are cases in which the needed evidence can only be supplied by
witnesses, whom the arresting officer or private persons has not the authority or
the time to round up and take to the city fiscal for examination with in what
remains, if any, of six hours.
Let me give two examples.
1. A murder with robbery is reported to the police. An alarm is broadcasted giving
a description of the murderer. Later a police officer is told that the wanted man is
in a store. He proceeds to the store and. besides believing in good faith of his
informant, detects in the man's physical appearance some resemblance to the
description given in the alarm. All this occurs at the holy hours of night.
Should the officer refrain from making an arrest because he is not certain beyond
reasonable doubt of the identity of the suspected murderer? Should the city fiscal
order the release of the prisoner because of insufficiency of evidence and because
the six hours are expiring, or should he prefer formal charges (if that can be done
at midnight) on the strength of evidence which, as likely as not, may be due to a
mistaken identify? Should not the prosecuting attorney be given, as the law clearly
intends, adequate time to summon those who witnessed the crime and who can tell
whether the prisoner was the fugitive?, allowing the prisoner to give bail, if he can.
2. A police officer is attracted by screams from a house where a robbery has been
committed. The officer rushed to the place, finds a man slain, is told that the
murderers have filed. The officer runs in the direction indicated and finds men
with arms who, from appearances, seem to be the perpetrators of the crime. The
people who saw the criminals run off are not sure those are the men they saw. The
night was dark, for criminals like to ply their trade under cover of darkness.
The officer does not, under these circumstances, have to seek an arrest warrant or
wait for one before detaining the suspected persons. To prevent their escape he
brings them to the police station. On the other hand, would the fiscal be justified in
filing an information against such persons on the sole testimony of the police
officer? It is not his duty to wait for more proofs on their probable connection with
the crime? Should the city fiscal file an information on sufficient evidence, or
should he as the only alternative, order the release of the prisoners? Does either
course subserve the interest of justice and the interest of the public? If the arrested
persons are innocent, as they may be, is either interest be served by hasty filing of
information against them, or would they rather have a more thorough investigation
of the case?
Cases like these with varying details can be multiplied ad infinitum. They form the
bulk of underworld activities with which the forces of law have to cope and with
which the general public is vitally concerned. The public would not be secure in
their homes and in the pursuit of their occupations if his Court, through
unreasoning worship of formalism, throws down a method, practice and procedure
that have been used here and elsewhere from time immemorial to the end of
service and in the interest of public security. The public security. The public is not
much interested in such minor offenses as pick-pocketing, fist fights and
misdemeanors or violations of municipal ordinances for which arrests can be made
by police officers only when committed in their presence or within their hearing.
The decision of this Court leaves the city fiscal no alternative between releasing
prisoners for insufficiency of evidence due to lack of time to secure more, and
filing information against persons who may be innocent of the crimed charge. The
latter course, defeats directly the very aims of preliminary investigation is to
secure the innocent against hasty, malicious and oppresive prosecution and to
protect him from open and public accusation of crime, and from the trouble,
expense, anxiety of a public trial, and also to protect the State from useless and
expensive prosecutions. (Hashim vs. Boncan, No. 47777, January 13, 1941; 40
Off. Gaz., 13th Supp. p. 13; U.S. vs. Mendez, 4 Phil.; 124; U.S. vs. Grant and
Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666; People vs. Colon, 47 Phil.
443.) Even more deplorable would be the acquittal of guilty accused due to lack of
proofs which the prosecution, if it had been afforded sufficient time, could have
gathered.
The foregoing goes, too, for the concurring opinion. There is only one more point
to which we wish to address ourselves briefly. The concurring opinion contains
this passage:
Dentro de las 6 horas hay tiempo mas que suficiente para meter en cuenta
atoda la canalla ... Pero; por Dios que no se violen ni pisoteen lasgarantias
constitucionales por miedo a los gangsters!
person arrested to the proper court or judge for such action as they may
deem proper to take.
2
There shall be a chief of police who ... may take good and sufficient bail
for the appearance before the city court of any person arrested for
violation of any city ordinance: Provided, however, That he shall not
exercise this power in cases of violations of any penal law, except when
the fiscal of the city shall so recommend and fix the bail to be required of
the person arrested; . . . .

No one can disagree with this though as an abstract proposition. The only
trouble is that the opinion does not cite any concrete constitutional provision or
guaranty that is infringed by our dissent. I take the suggestion in the
resolution that "it would be proper for the interested parties to take the case to
Congress, since it can not be done by judicial legislation" to be a tacit
recognition that the matter is purely one of statute and that no constitutional
impediment is in the way of changing the law and enlarging the power of the city
fiscal in the premises. And let it be said that the objection in the concurring
opinion to this suggestion is rested, not on constitutional grounds but on the
supposition that the law is good enough to be left alone. All which tempts us to
paraphrase the famous apostrophe of that equally famous woman in French
history, and exclaim, "Oh Constitution! what grievous mistakes are committed in
thy name!"

The concurring opinion is in error when it sees shadows of fear gangster in our
dissent. Society no less than a natural person has the right to protect itself, and the
arrest and punishment of transgressors of its laws is one of its legitimate means of
self-protection and self-preservation. As far as the insinuation of fear may reflect
on those who are duty bound to have part in such arrest and punishment, the
application of criminal laws without quarters to the end which they are intended to
serve, is not in strict logic a sign of apprehension. Such course, rather than
tolerance, leniency or indifference towards crimes and appeasement of lawless and
other elements and groups who wield the power of physical and verbal relations,
calls for exactly the opposite quality of fright.

Padilla, J., concurs.

Footnotes

1
Any person making arrest for legal ground shall, without unnecessary
delay and within the time prescribed in the Revised Penal Code, take the