Republic of the Philippines robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements

SUPREME COURT of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent
Manila Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers
from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent
EN BANC Francisco Zubia, Jr.; Presidential Anti-Crime Commission — Task Force Habagat (PACC-TFH) headed
by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led
by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed
by petitioner-intervenor Chief Superintendent Romeo Acop.
G.R. No. 128096 January 20, 1999
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out
PANFILO M. LACSON, petitioner,
between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido
vs.
Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the
PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said
THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE incident was a legitimate police operation.1
DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO,
and THE PEOPLE OF THE PHILIPPINES, respondent.
However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-
ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors. six (26) respondents, including herein petitioner and intervenors. The recommendation was
approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo
de Leon.

MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 — an act which further defines
the jurisdiction of the Sandiganbayan — is being challenged in this petition for prohibition
and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and
Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of
Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of
jurisdiction.
The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are
as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong
Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in
eleven (11) information for murder2 before the Sandiganbayan's Second Division, while
intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same
informations as accessories after-in-the-fact.
Upon motion by all the accused in the 11 information,3 the Sandiganbayan allowed them to file a
motion for reconsideration of the Ombudsman's action.4
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations5before the Sandiganbayan, wherein petitioner was charged only as an accessory,
together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped
from the case.

1
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act
No. 7975.7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases
where one or more of the "principal accused" are government officials with Salary Grade (SG) 27
or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The
highest ranking principal accused in the amended informations has the rank of only a Chief
Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice
Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena
dissenting,9 the Sandiganbayan admitted the amended information and ordered the cases
transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction
under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that
the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the
accused.
While these motions for reconsideration were pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill
No. 229910 and No. 109411 (sponsored by Representatives Edcel C. Lagman and Lagman and Neptali
M. Gonzales II, respectively), as well as Senate Bill No. 84412 (sponsored by Senator Neptali
Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan.
Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan
by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a
and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of
the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the
motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution
dated May 8, 1996."
On the same day15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the
pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in
it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion,
the legislature enacted Republic Act 8249 and the President of the Philippines
approved it on February 5, 1997. Considering the pertinent provisions of the new
law, Justices Lagman and Demetriou are now in favor of granting, as they are
now granting, the Special Prosecutor's motion for reconsideration. Justice de
Leon has already done so in his concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases — in fact, no order of
arrest has been issued — this court has competence to take cognizance of these
cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2,
the court admitted the Amended Informations in these cases by the unanimous
vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and
decide the cases16 (Empahasis supplied)
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over which
trial has not begun as to the approval hereof." Petitioner argues that:
a) The questioned provisions of the statute were introduced by the authors
thereof in bad faith as it was made to precisely suit the situation in which
petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof
to it, thereby violating his right to procedural due process and the equal
protection clause of the Constitution. Further, from the way the Sandiganbayan
has foot-dragged for nine (9) months the resolution of a pending incident
involving the transfer of the cases to the Regional Trial Court, the passage of the
law may have been timed to overtake such resolution to render the issue therein
moot, and frustrate the exercise of petitioner's vested rights under the old
Sandiganbayan law (RA 7975)
2
 b) Retroactive application of the law is plan from the fact that it was again made
to suit the peculiar circumstances in which petitioner's cases were under,
namely, that the trial had not yet commenced, as provided in Section 7, to make
certain that those cases will no longer be remanded to the Quezon City Regional
Trial Court, as the Sandiganbayan alone should try them, thus making it an ex
post factolegislation and a denial of the right of petitioner as an accused in
Criminal Case Nos. 23047-23057 to procedural due process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous"
provisions in Sections 4 and 7 which actually expands rather than defines the old
Sandiganbayan law (RA 7975), thereby violating the one-title one-subject
requirement for the passage of statutes under Section 26 (1), Article VI of the
Constitution.17
For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No.
8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the
introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation
and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng
case pending before the Sandiganbayan.18 They further argued that if their case is tried before the
Sandiganbayan their right to procedural due process would be violated as they could no longer
avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before
recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of
the constitutionality of the challenged provisions of the law in question and praying that both the
petition and the petition-in-intervention be dismissed.
This Court then issued a Resolution19 requiring the parties to file simultaneously within a
nonextendible period of ten (10) days from notice thereof additional memoranda on the question
of whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently
allege the commission by the accused therein of the crime charged within the meaning Section
4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction
of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines, filed
the required supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to
justify its nullification there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those
who challenge it. That burden, we regret to say, was not convincingly discharged in the present
case.
The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution,
which provides:
Sec. 5. The Batasang Pambansa shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by
public officers and employees including those in government-owned or
controlled corporations, in relation to their office as may be determined by law.
The said special court is retained in the new (1987) Constitution under the following provisions in
Article XI, Section 4:
Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue
to function and exercise its jurisdiction as now or hereafter may be provided by
law.
Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the
Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were
enacted: P.D. No. 1606,22 Section 20 of Batas Pambansa Blg. 123,23 P.D. No. 1860,24 P.D. No.
1861,25 R.A. No. 7975, 26 and R.A. No. 8249.27 Under the latest amendments introduced by Section
4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases:
Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:
Sec. 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Titile VII, Book II of the Revised Penal Code, where one or more of the accused are
3
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and
all officers of higher rank;
(e) Officers of the Philippines National Police while occupying
the position of provincial director and those holding the rank
of senior superintendent or higher.
(f) City of provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and
special prosecutor;
(g) Presidents, directors or trustees or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as-Grade "27" and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in Subsection a of
this section in relation to their office.
c. Civil and criminal cases filed pursuant to and connection with Executive Orders
Nos. 1,2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to
salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or
military and PNP officers mentioned above, exclusive original jurisdiction thereof
shall be vested in the proper regional trial court, metropolitan trial court,
municipal trial court, and municipal circuit trial court, as the case may be,
pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as
amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts whether in the exercise
of their own original jurisdiction or of their appellate jurisdiction as herein
provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising
or that may arise in cases filed or which may be filed under Executive Order Nos.
1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.
4
 The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may hereafter
promulgate, relative to appeals/petitions for review to the Court of Appeals,
shall apply to appeals and petitions for review filed with the Sandiganbayan. In
all cases elevated to the Sandiganbayan and from the Sandiganbayan to the
Supreme Court, the Office of the Ombudsman, through its special prosecutor,
shall represent the People of the Philippines, except in cases filed pursuant to
Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employee, including those employed in
government-owned or controlled corporations, they shall be tried jointly with
said public officers and employees in the proper courts which shall exercise
exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision — This act shall apply to all cases pending in any court
over which trial has not begun as of the approval hereof. (Emphasis supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended)
is hereby further amended to read as follows:
Sec 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the pricipal
accused are afficials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers,
assessors, engineer, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains, and
all officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and
special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade "27" and up
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
5
 (4) Chairman and members of the Constitutional Commissions, without
prejudice to the provisions of the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees
mentioned in Subsection a of this section in relation to their office.
c. Civil and criminal cases files pursuant to and in connection with Executive
Order Nos. 1, 2, 14, and 4-A.
In cases where none of the principal accused are occupying positions
corresponding to salary Grade "27" or higher, as presribed in the said Republic
Act 6758, or PNP officers occupying the rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court, and municipal circuit
trial court, as the case may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas
from the final judgment, resolutions or orders of regular court where all the
accused are occupying positions lower than grade "27," or not otherwise covered
by the preceding enumeration.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with
said public officers and employees in the proper courts which shall have
exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 7975 reads:
Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not
begun in the Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due
to this deletion of the word "principal" that the parties herein are at loggerheads over the
jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the
Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since
none of the principal accused under the amended information has the rank of Superintendent 28 or
higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is
tasked to represent the People before the Supreme Court except in certain cases, 29 contends that
the Sandiganbayan has jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original
jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed
is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code
(the law on bribery),30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration
cases),31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the
offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee32holding
any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in
relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a felony
punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense
is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other
offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their
office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder,
provided it was committed in relation to the accused's officials functions. Thus, under said
paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of
the offender — that is, whether he is one of those public officers or employees enumerated in
paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do
not make any reference to the criminal participation of the accused public officer as to whether he
is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply
restored the original provisions of P.D. 1606 which does not mention the criminal participation of
the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.
6
Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal
protection of the law33 because its enactment was particularly directed only to the Kuratong
Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete
evidence and convincing argument were presented to warrant a declaration of an act of the entire
Congress and signed into law by the highest officer of the co-equal executive department as
unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who
challenges the law must present proof of arbitrariness. 34
It is an established precept in constitutional law that the guaranty of the equal protection of the
laws is not violated by a legislation based on reasonable classification. The classification is
reasonable and not arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
35
(4) must apply equaly to all members of the same class,
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality
and reasonables of the questioned provisions. The classification between those pending cases
involving the concerned public officials whose trial has not yet commence and whose cases could
have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as
against those cases where trial had already started as of the approval of the law, rests on
substantial distinction that makes real differences.36 In the first instance, evidence against them
were not yet presented, whereas in the latter the parties had already submitted their respective
proofs, examined witnesses and presented documents. Since it is within the power of Congress to
define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably
anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is
why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and
intervenors cannot now claim that Sections 4 and 7 placed them under a different category from
those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to
"all case involving" certain public officials and, under the transitory provision in Section 7, to "all
cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not
particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only
cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong
Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already
begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their
participation in the passage of the said provisions. In particular, it is stressed that the Senator had
expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during
the hearings conducted on the matter by the committee headed by the Senator. Petitioner further
contends that the legislature is biased against him as he claims to have been selected from among
the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a,
Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249.39 R.A 8249, while
still a bill, was acted, deliberated, considered by 23 other Senators and by about 250
Representatives, and was separately approved by the Senate and House of Representatives and,
finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the
committe hearings, the same would not constitute sufficient justification to nullify an otherwise
valid law. Their presence and participation in the legislative hearings was deemed necessary by
Congress since the matter before the committee involves the graft court of which one is the head
of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative
powers, is particularly empowered by the Constitution to invite persons to appear before it
whenever it decides to conduct inquiries in aid of legislation.40
Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to
the Kuratong Baleleng cases constitutes an ex post facto law41 for they are deprived of their right
to procedural due process as they can no longer avail of the two-tiered appeal which they had
allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull,42 an ex post factolaw is one —
(a) which makes an act done criminal before the passing of the
law and which was innocent when committed, and punishes
such action; or
7
 (b) which aggravates a crime or makes it greater than when it
was committed; or
(c) which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed.
(d) which alters the legal rules of evidence and recieves less or
different testimony that the law required at the time of the
commission of the offense on order to convict the defendant.43
(e) Every law which, in relation to the offense or its
consequences, alters the situation of a person to his
disadvantage.44
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies
only but in effect imposes a penalty or deprivation of a right
which when done was lawful;
(g) deprives a person accussed of crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of a amnesty.45
Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It
is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the
Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that
define crimes, treat of their nature, and provide dor their punishment. 48 R.A 7975, which amended
P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e.
one which prescribes rules of procedure by which courts applying laws of all kinds can properly
administer justice.49 Not being a penal law, the retroactive application of R.A. 8249 cannot be
challenged as unconstitutional.
Petitioner's and entervenors' contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same
contention has already been rejected by the court several times 50 considering that the right to
appeal is not a natural right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in the prohibition against ex
post facto laws.51 R.A. 8249 pertains only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a
penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter
the rules of evidence or the mode of trial.53 It has been ruled that adjective statutes may be made
applicable to actions pending and unresolved at the time of their passage. 54
In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review
questions of law.55 On the removal of the intermediate review of facts, the Supreme Court still has
the power of review to determine if he presumption of innocence has been convincing overcome.56
Another point. The challenged law does not violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the
Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The
expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have
to be expressly stated in the title of the law because such is the necessary consequence of the
amendments. The requirement that every bill must only have one subject expressed in the title57is
satisfied if the title is comprehensive enough, as in this case, to include subjects related to the
general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should
be given a practical rather than a technical construction. There is here sufficient compliance with
such requirement, since the title of R.A. 8249 expresses the general subject (involving the
jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the
provisions of the law are germane to that general subject. 59 The Congress, in employing the word
"define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution
itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various
courts.60
There being no unconstitutional infirmity in both the subject amendatory provision of Section 4
and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we
shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or
Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner
and entervenors.
8
The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition
must appear in the complaint or information so as to ascertain which court has jurisdiction over a
case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in
the complaint or informations,61 and not by the evidence presented by the parties at the trial. 62
As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section
4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by
the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over
it.63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973
Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases
committed by the public officers and employees, including those in goverment-owned or
controlled corporations, "in relation to their office as may be determined by law." This
constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section
4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or
hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of multiple murder was
committed in relation to the office of the accussed PNP officers.
In People vs. Montejo,64 we held that an offense is said to have been committed in relation to the
office if it (the offense) is "intimately connected" with the office of the offender and perpetrated
while he was in the performance of his official functions. 65 This intimate relation between the
offense charged and the discharge of official duties "must be alleged in the informations." 66
As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised
Rules of Court mandates:
Sec. 9 Couse of accusation — The acts or omissions complied of as constituting
the offense must be stated in ordinary and concise language without
repetition not necessarily in the terms of the statute defining the offense, but in
such from as is sufficient to enable a person of common understanding to know
what offense is intended to be charged, and enable the court to pronounce
proper judgment. (Emphasis supplied)
As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital
of the facts."67The real nature of the criminal charge is determined not from the caption or
preamble of the informations nor from the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the actual recital of facts in the complaint or
information.68
The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69
The object of this written accusations was — First; To furnish the accused with
such a descretion of the charge against him as will enable him to make his
defense and second to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause and third, to inform the court
of the facts alleged so that it may decide whether they are sufficient in law to
support a conviction if one should be had. In order that the requirement may be
satisfied, facts must be stated, not conclusions of law. Every crime is made up of
certain acts and intent these must be set forth in the complaint with reasonable
particularly of time, place, names (plaintiff and defendant) and circumstances.
In short, the complaint must contain a specific allegation of every
fact and circumstance necessary to constitute the crime charged. (Emphasis
supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he
is presumed to have no indefendent knowledge of the facts that constitute the offense." 70
Applying these legal principles and doctrines to the present case, we find the amended
informations for murder against herein petitioner and intervenors wanting of specific factual
averments to show the intimate relation/connection between the offense charged and the
discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations71 for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby
accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE,
SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE
P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF
9
SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O.
MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR
INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3
CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and
PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize
under Article 248 of the Revised Penal Code committed as follows
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City
Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF
INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP.
JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO,
SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R.
JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1
OSMUNDO B. CARINO, all taking advantage of their public and official positions
as officers and members of the Philippine National Police and committing the
acts herein alleged in relation to their public office, conspiring with intent to kill
and using firearms with treachery evident premeditation and taking advantage
of their superior strenghts did then and there willfully unlawfully and feloniously
shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which
caused his instantaneous death to the damage and prejudice of the heirs of the
said victim.
That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN,
INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2
ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and
members of the Philippine National Police are charged herein as accessories
after-the-fact for concealing the crime herein above alleged by among others
falsely representing that there where no arrest made during the read conducted
by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or
about the early dawn of May 18, 1995.
CONTRARY LAW.
While the above-quoted information states that the above-named principal accused committed
the crime of murder "in relation to thier public office, there is, however, no specific allegation of
facts that the shooting of the victim by the said principal accused was intimately related to the
discharge of their official duties as police officers. Likewise, the amended information does not
indicate that the said accused arrested and investigated the victim and then killed the latter while
in their custody.
Even the allegations concerning the criminal participation of herein petitioner and intevenors as
among the accessories after-the-facts, the amended information is vague on this. It is alleged
therein that the said accessories concelead "the crime herein-above alleged by, among others,
falsely representing that there were no arrests made during the raid conducted by the accused
herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18,
1995." The sudden mention of the "arrests made during the raid conducted by the accused"
surprises the reader. There is no indication in the amended information that the victim was one of
those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly
conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately
preceding paragraph of the amended information, the shooting of the victim by the principal
accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting
happened in the two places far away from each other is puzzling. Again, while there is the
allegation in the amended information that the said accessories committed the offense "in relation
to office as officers and members of the (PNP)," we, however, do not see the intimate connection
between the offense charged and the accused's official functions, which, as earlier discussed, is an
essential element in determining the jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularly as will reasonably
indicate the exact offense which the accused is alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the mere allegation in the amended information that
the offense was committed by the accused public officer in relation to his office is not sufficient.
That phrase is merely a conclusion between of law, not a factual avernment that would show the
close intimacy between the offense charged and the discharge of the accused's official duties.
In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the
complaint or information and not by the result of evidence after trial.
10
 In (People vs) Montejo (108 Phil 613 (1960), where the amended information
alleged
Leroy S. Brown City Mayor of Basilan City, as such, has
organized groups of police patrol and civilian commandoes
consisting of regular policeman and . . . special policemen
appointed and provided by him with pistols and higher power
guns and then established a camp . . . at Tipo-tipo which is
under his command . . . supervision and control where his co-
defendants were stationed entertained criminal complaints
and conducted the corresponding investigations as well as
assumed the authority to arrest and detain person without due
process of law and without bringing them to the proper court,
and that in line with this set-up established by said Mayor of
Basilan City as such, and acting upon his orders his co-
defendants arrested and maltreated Awalin Tebag who denied
in consequence thereof.
we held that the offense charged was committed in relation to the office of the
accused because it was perpetreated while they were in the performance,
though improper or irregular of their official functions and would not have been
committed had they not held their office, besides, the accused had no personal
motive in committing the crime thus, there was an intimate connection between
the offense and the office of the accused.
Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in
the court below do not indicate that the accused arrested and investigated the
victims and then killed the latter in the course of the investigation. The
informations merely allege that the accused for the purpose of extracting or
extortin the sum of P353,000.00 abducted, kidnapped and detained the two
victims, and failing in their common purpose they shot; and killed the said
victims. For the purpose of determining jurisdiction, it is these allegations that
shall control, and not the evidence presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation
to public office "does not appear in the information, which only signifies that the said phrase is not
what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual
allegations in the information that would indicate the close intimacy between the discharge of the
accused's official duties and the commission of the offense charged, in order to qualify the crime
as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the
offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court,73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple
murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over
the said cases.1âwphi1.nêt
SO ORDERED.
Case Digest: LACSON VS. EXECUTIVE SECRETARY
301 SCRA 298; G.R. NO. 12809620 JAN 1999]
LACSON VS. EXECUTIVE SECRETARY
Facts:
Eleven persons believed to be members of the Kuratong Baleleng gang, an organized crime
syndicate involved in bank robberies, were slain by elements of the Anti-Bank Robbery
andIntelligence Task Group (ABRITG). Among those included in the ABRITG were petitioners and
petitioner-intervenors.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the Criminal Investigation
Command, that what actually transpired was a summary execution and not a shoot-out between
the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desiertoformed a
panel of investigators to investigate the said incident. Said panel found the incident as a legitimate
police operation. However, a review board modified the panel’s finding and recommended the
indictment for multiple murder against twenty-six respondents including herein petitioner,
charged as principal, and herein petitioner-intervenors, charged as accessories. After a
reinvestigation, the Ombudsman filed amended informations before the Sandiganbayan, where
petitioner was charged only as an accessory.
11

The accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting
that under the amended informations, the cases fall within the jurisdiction of the Regional Trial
Court pursuant to Section 2 of R.A. 7975. They contend that the said law limited the jurisdiction of
the Sandiganbayan to cases where one or ore of the “principal accused” are government officals
with Salary Grade 27 or higher, or PNP officials with rank of Chief Superintendent or higher. Thus,
they did not qualify under said requisites. However, pending resolution of their motions, R.A. 8249
was approved amending the jurisdiction of the Sandiganbayan by deleting the word “principal”
from the phrase “principal accused” in Section 2 of R.A. 7975.
Petitioner questions the constitutionality of Section 4 of R.A. 8249, including Section 7 which
provides that the said law shall apply to all cases pending in any court over which trial has not
begun as of the approval hereof.
Issues:
(1) Whether or not Sections 4 and 7 of R.A. 8249 violate the petitioners’ right to due process and
the equal protection clause of the Constitution as the provisions seemed to have been introduced
for the Sandiganbayan to continue to acquire jurisdiction over the Kuratong Baleleng case.
(2) Whether or not said statute may be considered as an ex-post facto statute.
(3) Whether or not the multiple murder of the alleged members of the Kuratong Baleleng was
committed in relation to the office of the accused PNP officers which is essential to the
determination whether the case falls within the Sandiganbayan’s or Regional Trial Court’s
jurisdiction.
RULING:
Petitioner and intervenors’ posture that Sections 4 and 7 of R.A. 8249 violate their right to equal
protection of the law is too shallow to deserve merit. No concrete evidence and convincing
argument were presented to warrant such a declaration. Every classification made by the law is
presumed reasonable and the party who challenges the law must present proof of arbitrariness.
The classification is reasonable and not arbitrary when the following concur: (1) it must rest on
substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited
to existing conditions only, and (4) must apply equally to all members of the same class; all of which
are present in this case.
Paragraph a of Section 4 provides that it shall apply “to all cases involving” certain public officials
and under the transitory provision in Section 7, to “all cases pending in any court.” Contrary to
petitioner and intervenors’ argument, the law is not particularly directed only to the Kuratong
Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan
but also in “any court.”
There is nothing ex post facto in R.A. 8249. Ex post facto law, generally, provides retroactive effect
of penal laws. R.A. 8249 is not apenal law. It is a substantive law on jurisdiction which is not penal
in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish
penalties for their violations or those that define crimes and provide for their punishment. R.A.
7975, as regards the Sandiganbayan’s jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a procedural statute, one
which prescribes rules of procedure by which courts applying laws of all kinds can properly
administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be
challenged as unconstitutional.
In People vs. Montejo, it was held that an offense is said to have been committed in relation to the
office if it is intimately connected with the office of the offender and perpetrated while he was in
the performance of his official functions. Such intimate relation must be alleged in the information
which is essential in determining the jurisdiction of the Sandiganbayan. However,
upon examination of the amended information, there was no specific allegation of facts that the
shooting of the victim by the said principal accused was intimately related to the discharge of their
official duties as police officers. Likewise, the amended information does not indicate that the said
accused arrested and investigated the victim and then killed the latter while in their custody. The
stringent requirement that the charge set forth with such particularity as will reasonably indicate
the exact offense which the accused is alleged to have committed in relation to his office was not
established.
Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the
offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court and not the Sandiganbayan.
12
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425,
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow
Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The
criminal charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents
in the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was
said to have been seized. The narcotic agents were accompanied by private respondent Arthur
Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08
January 1988, Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the
facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines
to study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran,
he was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the
United Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo,
the defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of
caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the Khomeini government cut his
pension of over $3,000.00 per month. During their introduction in that meeting, the defendant
gave the plaintiff his calling card, which showed that he is working at the US Embassy in the
Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of
the United States, and gave his address as US Embassy, Manila. At the back of the card appears a
telephone number in defendant’s own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his
wife and the wife of a countryman named Abbas Torabian. The defendant told him that he [could]
help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated
on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize
but for the reason that the defendant was not yet there, he requested the restaurant people to x
x x place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar
for which he was paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at
Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at
$27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant did not
yet have the money, they agreed that defendant would come back the next day. The following day,
at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in
turn, gave him the pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's
house and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00
from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The
defendant told him that he would be leaving the Philippines very soon and requested him to come
out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without
much ado, and without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise, an American
jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40
13
Filipino soldiers with 6 Americans, all armed. He was handcuffed and after about 20 minutes in the
street, he was brought inside the house by the defendant. He was made to sit down while in
handcuffs while the defendant was inside his bedroom. The defendant came out of the bedroom
and out from defendant's attaché case, he took something and placed it on the table in front of
the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house
and likewise arrested Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed and why the privacy of
his house, especially his bedroom was invaded by defendant. He was not allowed to use the
telephone. In fact, his telephone was unplugged. He asked for any warrant, but the defendant told
him to `shut up.’ He was nevertheless told that he would be able to call for his lawyer who can
defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and
a pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was
identified in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water." 1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court
granted the motion. On 27 October 1988, Scalzo filed another special appearance to quash the
summons on the ground that he, not being a resident of the Philippines and the action being one
in personam, was beyond the processes of the court. The motion was denied by the court, in its
order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to
file an answer to the complaint was a voluntary appearance equivalent to service of summons
which could likewise be construed a waiver of the requirement of formal notice. Scalzo filed a
motion for reconsideration of the court order, contending that a motion for an extension of time
to file an answer was not a voluntary appearance equivalent to service of summons since it did not
seek an affirmative relief. Scalzo argued that in cases involving the United States government, as
well as its agencies and officials, a motion for extension was peculiarly unavoidable due to the
need (1) for both the Department of State and the Department of Justice to agree on the defenses
to be raised and (2) to refer the case to a Philippine lawyer who would be expected to first review
the case. The court a quo denied the motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition
and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review
on certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its
failure to comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to
show that the appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo
in default for his failure to file a responsive pleading (answer) and (b) setting the case for the
reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default
and to admit his answer to the complaint. Granting the motion, the trial court set the case for pre-
trial. In his answer, Scalzo denied the material allegations of the complaint and raised the
affirmative defenses (a) of Minucher’s failure to state a cause of action in his complaint and (b)
that Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of Justice. Scalzo interposed a
counterclaim of P100,000.00 to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States
Drug Enforcement Administration, he was entitled to diplomatic immunity. He attached to his
motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to
the Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of
Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In
an order of 25 June 1990, the trial court denied the motion to dismiss.
14
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic
immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a
petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs.
the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the
Court of Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice)
Hilario Davide, Jr., this Court reversed the decision of the appellate court and remanded the case
to the lower court for trial. The remand was ordered on the theses (a) that the Court of Appeals
erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his person without
even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the
complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in
his personal capacity and outside the scope of his official duties and, absent any evidence to the
contrary, the issue on Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00;
moral damages in the sum of P10 million; exemplary damages in the sum of P100,000.00;
attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on
this judgment to answer for the unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that
he was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be
held accountable for the acts complained of committed outside his official duties. On appeal, the
Court of Appeals reversed the decision of the trial court and sustained the defense of Scalzo that
he was sufficiently clothed with diplomatic immunity during his term of duty and thereby immune
from the criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1)
whether or not the doctrine of conclusiveness of judgment, following the decision rendered by this
Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to
it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to
diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the
part of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties,
subject matter and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 -
"whether or not public respondent Court of Appeals erred in ruling that private respondent Scalzo
is a diplomat immune from civil suit conformably with the Vienna Convention on Diplomatic
Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765,
however, has not resolved that point with finality. Indeed, the Court there has made this
observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on
13 June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his
position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in
the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution
of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the
United States Drugs Enforcement Agency as "conducting surveillance operations on suspected
drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the
U.S., (and) having ascertained the target, (he then) would inform the Philippine narcotic agents
(to) make the actual arrest." Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
15
 3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of
Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of
Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department
of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice
of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was
firm from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the
case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the
United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate
action to inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits
were presented to indicate that: (1) the Philippine government itself, through its Executive
Department, recognizing and respecting the diplomatic status of Scalzo, formally advised the
"Judicial Department" of his diplomatic status and his entitlement to all diplomatic privileges and
immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself
authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the surveillance and subsequent arrest of Minucher,
the certification of the Drug Enforcement Administration of the United States Department of
Justice that Scalzo was a special agent assigned to the Philippines at all times relevant to the
complaint, and the special power of attorney executed by him in favor of his previous counsel 6 to
show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a
member of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with
the cooperation of the Philippine law enforcement officials and in the exercise of his functions as
member of the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and
(c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of
duty in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant
Attaché of the United States diplomatic mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas
office of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative
expertise and assistance to foreign law enforcement agencies on narcotic and drug control
programs upon the request of the host country, 2) to establish and maintain liaison with the host
country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies which affect the interests of the United
States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the
establishment of the Roman Empire, and among the states of India, the person of the herald in
time of war and the person of the diplomatic envoy in time of peace were universally held
sacrosanct.7 By the end of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a rule of customary
international law.8 Traditionally, the exercise of diplomatic intercourse among states was
undertaken by the head of state himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted with the external affairs of
the state. Where a state would wish to have a more prominent diplomatic presence in the receiving
state, it would then send to the latter a diplomatic mission. Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and large, the representation of
the interests of the sending state and promoting friendly relations with the receiving state. 9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs 12 accredited to the ministers of foreign
affairs.13 Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the
administrative staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative, technical and
service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on
Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic
agents," under the terms of the Convention, are vested with blanket diplomatic immunity from
civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or
16
members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It
might bear stressing that even consuls, who represent their respective states in concerns of
commerce and navigation and perform certain administrative and notarial duties, such as the
issuance of passports and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly
for the reason that they are not charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the
United States diplomatic mission and was accredited as such by the Philippine Government. An
attaché belongs to a category of officers in the diplomatic establishment who may be in charge of
its cultural, press, administrative or financial affairs. There could also be a class of attaches
belonging to certain ministries or departments of the government, other than the foreign ministry
or department, who are detailed by their respective ministries or departments with the embassies
such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or
the like. Attaches assist a chief of mission in his duties and are administratively under him, but their
main function is to observe, analyze and interpret trends and developments in their respective
fields in the host country and submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the diplomatic mission,
nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting
aside for the moment the issue of authenticity raised by the petitioner and the doubts that
surround such claim, in view of the fact that it took private respondent one (1) year, eight (8)
months and seventeen (17) days from the time his counsel filed on 12 September 1988 a Special
Appearance and Motion asking for a first extension of time to file the Answer because the
Departments of State and Justice of the United States of America were studying the case for the
purpose of determining his defenses, before he could secure the Diplomatic Note from the US
Embassy in Manila, and even granting for the sake of argument that such note is authentic, the
complaint for damages filed by petitioner cannot be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note.
x x x. The public respondent then should have sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have
been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect
and whose authenticity has not yet been proved. The undue haste with which respondent Court
yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur
W. Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August
1988) was listed as an Assistant Attaché of the United States diplomatic mission and was,
therefore, accredited diplomatic status by the Government of the Philippines." No certified true
copy of such "records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances.
It might be recalled that the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of
territorial jurisdiction.16 The government of the United States itself, which Scalzo claims to be
acting for, has formulated its standards for recognition of a diplomatic agent. The State
Department policy is to only concede diplomatic status to a person who possesses an
acknowledged diplomatic title and "performs duties of diplomatic nature." 17 Supplementary
17
criteria for accreditation are the possession of a valid diplomatic passport or, from States which do
not issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of
age, and performing diplomatic functions on an essentially full-time basis.18 Diplomatic missions
are requested to provide the most accurate and descriptive job title to that which currently applies
to the duties performed. The Office of the Protocol would then assign each individual to the
appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was
tasked to conduct surveillance of suspected drug activities within the country on the dates
pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his
assigned functions when he committed the acts alleged in the complaint, the present controversy
could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign
sovereign from suit20 and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity.21 If the acts giving rise to a suit are those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose service he
is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and
cannot assert jurisdiction over one another.22 The implication, in broad terms, is that if the
judgment against an official would require the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against
him, the suit must be regarded as being against the state itself, although it has not been formally
impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible
for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch
as the State authorizes only legal acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it has been said that an
action at law or suit in equity against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or invades the personal and property
rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the constitutional provision that the State may
not be sued without its consent. The rationale for this ruling is that the doctrine of state immunity
cannot be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may have caused by
his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction." 27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as
long as it can be established that he is acting within the directives of the sending state. The consent
of the host state is an indispensable requirement of basic courtesy between the two sovereigns.
18
Guinto and Shauf both involve officers and personnel of the United States, stationed within
Philippine territory, under the RP-US Military Bases Agreement. While evidence is wanting to show
any similar agreement between the governments of the Philippines and of the United States (for
the latter to send its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine government to the
activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of communication between agencies of
the government of the two countries, certifications from officials of both the Philippine
Department of Foreign Affairs and the United States Embassy, as well as the participation of
members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the
residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic
status" of the latter but they give enough indication that the Philippine government has given
its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local
law enforcers who would then be expected to make the arrest. In conducting surveillance activities
on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming
a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted
beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United
States Drug Enforcement Agency allowed by the Philippine government to conduct activities in the
country to help contain the problem on the drug traffic, is entitled to the defense of state immunity
from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Case Digest: KHOSROW MINUCHER vs. HON. COURT OF APPEALS and ARTHUR SCALZO (G.R. No. 142396 February
11, 2003)
Facts
Violation of the “Dangerous Drugs Act of 1972,” was filed against Minucher following a “buy-bust
operation” conducted by Philippine police narcotic agents accompanied by Scalzo in the house of
Minucher, an Iranian national, where heroin was said to have been seized. Minucher was later
acquitted by the court.
Minucher later on filed for damages due to trumped-up charges of drug trafficking made by Arthur
Scalzo.
Scalzo on his counterclaims that he had acted in the discharge of his official duties as being merely
an agent of the Drug Enforcement Administration of the United States Department of Justice.
Scalzo subsequently filed a motion to dismiss the complaint on the ground that, being a special
agent of the United States Drug Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note of the United States Embassy addressed to
DOJ of the Philippines and a Certification of Vice Consul Donna Woodward, certifying that the note
is a true and faithful copy of its original. Trial court denied the motion to dismiss.
ISSUE
Whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
RULLING
YES.
A foreign agent, operating within a territory, can be cloaked with immunity from suit as long as it
can be established that he is acting within the directives of the sending state.
The consent or imprimatur of the Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the undisputed facts in the case.
 The official exchanges of communication between agencies of the government of the two
countries
 Certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy
 Participation of members of the Philippine Narcotics Command in the “buy-bust operation”
conducted at the residence of Minucher at the behest of Scalzo
These may be inadequate to support the “diplomatic status” of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency.
19
The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers
and, after having ascertained the target, to inform local law enforcers who would then be expected
to make the arrest.

In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-
bust operation, and then becoming a principal witness in the criminal case against Minucher,

Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

20
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994,
for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged
before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral
defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue
of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the
MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge
received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that
petitioner is covered by immunity from legal process under Section 45 of the Agreement between
the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter
Agreement) in the country. Based on the said protocol communication that petitioner is immune
from suit, the MeTC judge without notice to the prosecution dismissed the two criminal cases. The
latter filed a motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the
warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner
elevated the case to this Court viaa petition for review arguing that he is covered by immunity
under the Agreement and that no preliminary investigation was held before the criminal cases
were filed in court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated. It should be noted that due process is a
right of the accused as much as it is of the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary
basis that has yet to be presented at the proper time. 1 At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the charges. 2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:
a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was
done in "official capacity." It is therefore necessary to determine if petitioner's case falls within the
ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA
protocol and it must be accorded the opportunity to present its controverting evidence, should it
so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty. 3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle
of law that a public official may be liable in his personal private capacity for whatever damage he
may have caused by his act done with malice or in bad faith or beyond the scope of his authority
or jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General,
does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the
case of an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions.5 As already mentioned above, the
commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say
that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the
one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only when
specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC.8 Besides the absence
21
of preliminary investigation does not affect the court's jurisdiction nor does it impair the validity motion was denied, the prosecution filed a petition for certiorari and mandamus with the RTC of
of the information or otherwise render it defective.9 Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of
arrest it earlier issued. After the motion for reconsideration was denied, the petitioner elevated
WHEREFORE, the petition is DENIED. the case to the SC via a petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal case.
SO ORDERED.
ISSUES:
(1) Whether or not the petitioner’s case is covered with immunity from legal process with regard to
Section 45 of the Agreement between the ADB and the Philippine Gov’t.
(2) Whether or not the conduct of preliminary investigation was imperative.

HELD:
(1) NO. The petitioner’s case is not covered by the immunity. Courts cannot blindly adhere to the
communication from the DFA that the petitioner is covered by any immunity. It has no binding
effect in courts. The court needs to protect the right to due process not only of the accused but
also of the prosecution. Secondly, the immunity under Section 45 of the Agreement is not absolute,
but subject to the exception that the acts must be done in “official capacity”. Hence, slandering a
person could not possibly be covered by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, in the name of official duty.
(2) NO. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this
LIANG VS PEOPLE OF THE PHILIPPINES GR no. 125865 January 28, 2000 case. Being purely a statutory right, preliminary investigation may be invoked only when
specifically granted by law. The rule on criminal procedure is clear that no preliminary investigation
is required in cases falling within the jurisdiction of the MeTC.

Petitioner: Jeffrey Liang Hence, SC denied the petition.

Respondent: People of the Philippines

FACTS:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994,
for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged
before the MeTC of Mandaluyong City with two counts of oral defamation. Petitioner was arrested
by virtue of a warrant issued by the MeTC. After fixing petitioner’s bail, the MeTC released him to
the custody of the Security Officer of ADB. The next day, the MeTC judge received an “office of
protocol” from the DFA stating that petitioner is covered by immunity from legal process under
section 45 of the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB in the country. Based on the said protocol communication that petitioner
is immune from suit, the MeTC judge without notice to the prosecution dismissed the criminal
cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its

22
G.R. No. 177752 February 24, 2009
PEOPLE OF THE PHILIPPINES, Appellant,
vs.
ROBERTO ABAY y TRINIDAD, Appellee.
DECISION
CORONA, J.:
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section
5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 41 under the following
Information:
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force
and intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and
lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and
whole body, lying on top of her and inserting his penis into her vagina, thus succeeded in having
carnal knowledge of her, against her will and consent thereafter threatening to kill her should she
report the incident, thereby gravely endangering her survival and normal growth and
development, to the damage and prejudice of [AAA].
CONTRARY TO LAW.
Appellant pleaded not guilty during arraignment.
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella
Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses.
AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she
was seven years old. Whenever her mother was working or was asleep in the evening, appellant
would threaten her with a bladed instrument 2 and force her to undress and engage in sexual
intercourse with him.
BBB corroborated AAA’s testimony. She testified that she knew about appellant’s dastardly acts.
However, because he would beat her up and accuse AAA of lying whenever she confronted him,
she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on
December 25, 1999, she immediately proceeded to the police station and reported the incident.
According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing
her for six years. This was confirmed by AAA’s physical examination indicating prior and recent
penetration injuries.
The defense, on the other hand, asserted the incredibility of the charge against appellant.
Appellant’s sister, Nenita Abay, and appellant’s daughter, Rizza, testified that if appellant had really
been sexually abusing AAA, the family would have noticed. The rooms of their house were divided
only by ¼-inch thick plywood "walls" that did not even reach the ceiling. Thus, they should have
heard AAA’s cries. Moreover, Nenita and Rizza claimed that they "often caught" AAA and her
boyfriend in intimate situations.
According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here,
appellant kept his silence which was contrary to human nature. On the other hand, AAA
straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded
that appellant had indeed sexually abused AAA. A young girl would not have exposed herself to
humiliation and public scandal unless she was impelled by a strong desire to seek justice.3
In a decision dated November 25, 2003,4 the RTC found appellant guilty beyond reasonable doubt
of the crime of rape:
WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of
committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5,
Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty,5 and to pay
private complainant moral damages in the amount of Fifty Thousand (₱50,000) Pesos.
SO ORDERED.
The Court of Appeals (CA), on intermediate appellate review,6 affirmed the findings of the RTC but
modified the penalty and award of damages.
In view of the enactment of RA 83537 and RA 9346,8 the CA found appellant guilty only of simple
rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil
indemnity ex delicto (which is mandatory once the fact of rape is proved) 9 granted by the RTC, it
awarded ₱50,000 as moral damages and ₱25,000 as exemplary damages. Moral damages are
23
automatically granted in rape cases without need of proof other than the commission of the further ordered to pay AAA ₱75,000 as civil indemnity ex-delicto, ₱75,000 as moral damages and
crime10 while exemplary damages are awarded by way of example and in order to protect young ₱25,000 as exemplary damages.
girls from sexual abuse and exploitation.11
Costs against appellant.
We affirm the decision of the CA with modifications.
SO ORDERED.
Under Section 5(b), Article III of RA 761012 in relation to RA 8353,13 if the victim of sexual abuse14 is
below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory
rape under Article 266-A(1)(d) of the Revised Penal Code15 and penalized with reclusion
perpetua.16 On the other hand, if the victim is 12 years or older, the offender should be charged
with either sexual abuse17 under Section 5(b) of RA 7610 or rape under Article 266-A (except
paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both
crimes18 for the same act because his right against double jeopardy will be prejudiced. A person
cannot be subjected twice to criminal liability for a single criminal act. 19 Likewise, rape cannot be
complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code
(on complex crimes),20 a felony under the Revised Penal Code (such as rape) cannot be complexed
with an offense penalized by a special law.21

In this case, the victim was more than 12 years old when the crime was committed against her.
The Information against appellant stated that AAA was 13 years old at the time of the incident.
Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape
under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may
have alleged the elements of both crimes, the prosecution’s evidence only established that
appellant sexually violated the person of AAA through force and intimidation22 by threatening her
with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was
established.23

Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in
sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape
under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion
perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to pay AAA ₱75,000
as civil indemnity ex-delicto24 and ₱75,000 as moral damages.25

WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365
is hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby
found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is

24
G.R. No. 120988 August 11, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSEMARIE DE LA CRUZ y NIEVA, accused-appellant.
MELO, J.:
Accused-appellant Rosemarie de la Cruz was caught holding a seven-year old schoolgirl by the hand
and leading her out of the school grounds. Charged with kidnapping and serious illegal detention
of a minor, she was convicted, and accordingly sentenced to suffer the penalty of no less
than reclusion perpetua. Accused-appellant contends that her guilt has not been established by
proof beyond reasonable doubt and that the entire case is nothing but an overreaction to the
situation.
The Information charged:
That on or about September 27, 1994, in the City of Manila, Philippines, the said
accused, being then a private individual and without authority of law, did then
and there willfully, unlawfully and feloniously kidnap, detain or in any manner
deprive one WHIAZEL SORIANO y CRUZ, seven years of age, of her liberty, against
her will and consent.
Contrary to law.
(p. 5, Rollo)
The case was docketed as Criminal Case No. 94-139168 before the Regional Trial Court of the
National Capital Judicial Region (Branch 35, Manila). After accused-appellant entered a plea of not
guilty, trial commenced. The testimony of the principal witnesses for the prosecution may be
summarized in the following manner:
Cecilia Caparos, a neighbor of Whiazel Soriano, the victim, testified that on September 27, 1994,
at around 11:30 o'clock in the morning, she waiting for her two children inside the compound of
the Aurora A. Quezon Elementary School when she saw Whiazel held on the hand and being led
away by a woman later identified as accused-appellant. Knowing that Whiazel was enrolled in the
afternoon class, she went after them and asked accused-appellant where she was going with
Whiazel. Accused-appellant answered that she asked Whiazel to bring her to Rowena Soriano, the
child's mother. Cecilia then turned to Whiazel and asked her why she was with accused-appellant.
Whiazel answered that accused-appellant requested her to look for the latter's child. Cecilia grew
suspicious because of the inconsistent answers, Whiazel's terrified look, and the scratches on the
child's face. She told accused-appellant that she will bring accused-appellant to a teacher because
she did not trust accused-appellant. Accused-appellant was "surprised and reasoned out", but just
the same agreed to go to a teacher (pp. 3-9, 11-13, tsn, April 3, 1995).
The victim, Whiazel Soriano (sometimes referred to in the record as Reazel or Rhiazel), at the time
of the incident, was a Grade 1 pupil at the Aurora A. Quezon Elementary School in Malate, Manila.
She testified that she voluntarily went with accused-appellant after being asked for help in looking
for the school dentist. Whiazel also mentioned that accused-appellant asked for her assistance in
looking for accused-appellant's child in a place far away from school. She was neither threatened
nor hurt in any way by accused-appellant. She was not led out of the school; in fact they never got
out of the school compound. When Cecilia Caparos saw them, Whiazel told accused-appellant that
she wanted to go. Accused-appellant refused, and held Whiazel's hand. Whiazel did not try to
escape. She did not even cry; well, not until they went to a teacher (pp. 3-9, tsn, April 7, 1995).
For the defense, Eufemia Magpantay, guidance teacher at Aurora A. Quezon Elementary School,
testified that on September 27, 1994, at around noontime, accused-appellant, Whiazel, her
teacher Mrs. Rioganes, and Cecilia Caparos went to her office. The incident was related to her.
Asked what she was doing with Whiazel, accused-appellant said she wanted the child's help in
looking for the school dentist. Accused-appellant reiterated this before the assistant principal to
whom they all later went. This witness testified that the school allows patients who are not
connected with the school to consult at the clinic. Further, she also mentioned that the students
of the Aurora A. Quezon Elementary School, the same being a public school, come mostly from low
to average income families (pp. 4-9, tsn, April 28, 1995).
Accused-appellant's mother-in-law, Gorgonia Nieva, testified that on the day prior to the incident,
accused-appellant had asked her to look for Dr. Luisa Medina, a dentist. Accused-appellant's
daughter was then sick. Her inquiries showed that the dentist no longer had her clinic at her house;
instead she may be found at the Aurora A. Quezon Elementary School. Thus, the next day, he went
with accused-appellant to Manila to look for the dentist. They parted ways when they arrived at
the school at around 11 o'clock in the morning (pp. 3-12, tsn, April 24, 1995).
25
Accused-appellant testified that when she got to the school, she asked; guard where the clinic was.
The guard gave her directions, and told her to pass through the same gate on her way out. When
she got to the clinic, no one was there so she left. On her way out, a girl, later identified as Whiazel,
walked with her at arm's length (nakasabay). She did not hold the child; she did not look at the
child; they did not talk; not even smiles were exchanged. Before she could get out of the school, a
woman (Cecilia Caparos) called her; hurled invectives at her, and accused her of kidnapping
Whiazel. Accused-appellant got mad but nevertheless offered no resistance when Caparos dragged
her and brought her to the office of the guidance counselor. There, Caparos repeated her charges
against accused-appellant, which accusations the latter denied. Whiazel was asked by the guidance
counselor if accused-appellant was really going to kidnap her, she answered no. Very much the
same things were said later at the principal's office ( pp. 2-8, tsn, April 21,1995). At the request of
the principal, five policemen later came and brought accused-appellant to Station No. 5 of the
Western Police District (pp. 14-15, Rollo).
Lending credence to the testimony of the prosecution witnesses, the trial court rendered the
appealed decision finding accused-appellant guilty beyond reasonable doubt of the crime of
kidnapping and serious illegal detention of a minor, as:
It has been established with moral certainty that with neither legal reason nor
just cause, the accused took hold of the child Whiazel by the hand, and led her
towards the gate of the school compound against her will, evidently to bring her
out of the school perimeter. But before they could actually exit through that
gate, the child saw a neighbor (obviously Cecilia Caparos) and told the accused
that she wanted to go to her neighbor. The accused, however, refused and did
not agree to let the child go and continued to hold her, for which reason, she
was not able to get away from the accused . . .
That the accused did not employ any physical force on Whiazel Soriano in
detaining and restraining her freedom provides no significant consequence to
relieve the former from the resultant effects of her consummated criminal act,
for it cannot be denied that she had exerted sufficient moral intimidation on the
child which effectively controlled and influenced her will . . . At such tender age
and immature mind she can easily be awed and cowed by a person such as the
accused.
(pp. 21-26, Ibid.)
Accordingly, accused-appellant was sentenced to suffer the penalty of reclusion perpetua, and to
pay the victim, through her parents, P50,000 as moral damages (p. 26, Ibid.).
Accused-appellant interposed the instant appeal, contending that her act of holding the child by
the hand and leading her out of the school premises cannot be considered an act of kidnapping
without leaving room for reasonable doubt. Accused-appellant points out that Whiazel did not
categorically state that accused-appellant tried to kidnap her. On the contrary, the child testified
that she voluntarily went with accused-appellant and that she was neither forced nor intimidated
into accompanying accused-appellant. Also, it is said, accused-appellant's excuse for going to
Whiazel's school to look for Dr. Medina is buttressed by the fact that she had a tooth extracted in
jail sometime in November 1994; and that contrary to Whiazel's statement, the guidance teacher,
Eufemia Magpantay, testified that even persons not connected with the school are allowed to
consult Dr. Medina at the school's dental clinic. Accused-appellant thus contends that she had a
valid reason for being at the school premises, as indeed, she did not run away and instead faced
her accuser. All these circumstances, accused-appellant submits, constitute reasonable doubt as
to her guilt which, therefore, necessitate her acquittal (pp. 4-8, Accused-Appellant's Brief; pp. 53-
57, Rollo).
The People, through the Office of the Solicitor General, argue that Whiazel was deprived of her
liberty, no matter how short a time, the moment accused-appellant, a person unknown to Whiazel,
prevented her from going over to her neighbor, Cecilia Caparos. Under the circumstances,
considering that she is of such tender age, deprivation of liberty was consummated even in the
absence of force or threats upon the victim. (pp. 6-7, Plaintiff-Appellee's Brief).
In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's
liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA
85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the
crime of kidnapping in this case are those when accused-appellant held the victim's hand and
refused to let go when the victim asked to go over to her neighbor, who by then already saw what
was happening. This happened for only a very brief span of time and the evidentiary record shows
that there were a good number of people present at that time, that a guard was stationed at the
gate, and that there was at least a teacher nearby. The child could have just as easily shouted for
help. While it does not take much to scare the wits out of a small child like Whiazel, under the
attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty.
It must further be noted that up to that brief moment when Cecilia saw them, and the child asked
to be let go, the victim had gone with accused-appellant voluntarily. Without any further act
reinforcing the inference that the victim may have been denied her liberty, even taking cognizance
26
of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated.
While it is a well-entrenched rule that factual findings of trial courts, especially when they concern
the appreciation of testimony of witnesses, are accorded great respect, by exception, when the
judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may
choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]).
To our mind, the felony committed is kidnapping and serious illegal detention of a minor in the
attempted stage only. The attempted phase of a felony is defined as when the offender
commences the commission of a felony, directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance (Article 6, Revised Penal Code). The overt act must be an external
one which has direct connection with the felony, it being "necessary to prove that said beginning
of execution, if carried to its complete termination following its natural course without being
frustrated by external obstacles nor by the voluntary desistance of the offender, will logically and
necessarily ripen to a concrete offense" (Padilla. Criminal Law: Revised Penal Code Annotated, vol.
I, 1987 ed., p. 141 citing People vs. Lamahang, 61 Phil 703).
In the case at bar, accused-appellant already commenced her criminal scheme by taking hold of
Whiazel by the hand and leading her out of the school premises. As mentioned earlier, these do
not sufficiently establish that kidnapping had been consummated. However, considering other
attendant facts and circumstances, it does reveal that accused-appellant had less than noble
intentions with the victim. Firstly, the child was led to believe that accused-appellant wanted to
see the dentist. It is not clear, however, that there really was a Dr. Medina employed by the school
as dentist. Not even the guidance counselor who testified for the defense made any specific
mention of the doctor. Secondly, if accused-appellant wanted to see the dentist, why was she on
her way out? If it is true she had already gone to the clinic and found no one there and that she
then decided to leave, what else was she doing with the child? Thirdly, accused-appellant did not
simply ask for directions; she wanted the victim to accompany her. That seems suspicious enough.
And of all people, why ask a seven-year old? Fortunately, the further progress and completion of
accused-appellant's felonious design was thwarted by the timely intervention of Cecilia Caparos,
the victim's neighbor.
The Court thus holds that the felony committed by accused-appellant in the case at bar is not
kidnapping and serious illegal detention of a minor in the consummated stage, but rather in its
attempted stage.
Nevertheless, we believe that the trial court erred in granting moral damages in the amount of
P50,000 despite the absence of any evidence on record that the victim suffered sleepless nights,
serious anxiety, fright, or similar injury. All that the record reveals is that the victim cried when
they were at the guidance counselor's office, nothing more. Inasmuch as moral damages are
granted not to enrich, but rather to compensate the victim for the injury suffered (Bautista vs.
Mangaldan Rural Bank, Inc., 230 SCRA 16 [1994]), proof of moral suffering must be introduced,
failing in which, such an award is not proper (People vs. Manero, Jr. et. al., 218 SCRA 85 [1993]).
Since the crime is only in its attempted stage, the penalty imposable under Article 267 of the
Revised Penal Code, as amended by R.A. 7659, which is reclusion perpetua to death, has to be
lowered by two degrees (Article 51, Revised Penal Code). Two degrees lower from reclusion
perpetua to death would be prision mayor, which has to be imposed in its medium period in the
absence of any mitigating or aggravating circumstance (Article 64, Revised Penal Code). Applying
further the Indeterminate Sentence Law, the imposable penalty would range from prision
correccional, as the minimum, to prision mayor in its medium period, as the maximum.
WHEREFORE, premises considered, the appealed decision is MODIFIED in that accused-appellant
is found guilty beyond reasonable doubt of attempted kidnapping and serious illegal detention.
Accordingly, accused-appellant is sentenced to suffer an indeterminate penalty of two (2) years
and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum. The award for moral damages in the amount of P50,000 is hereby DELETED.
SO ORDERED.
27
People v. Dela Cruz of a felony, directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own spontaneous
G.R. No. 120988 August 11, 1997 desistance (Article 6, Revised Penal Code).
• The overt act must be an external one which has direct connection with the felony, it being
Lessons Applicable: consummated crime "necessary to prove that said beginning of execution, if carried to its complete termination
following its natural course without being frustrated by external obstacles nor by the voluntary
Laws Applicable: desistance of the offender, will logically and necessarily ripen to a concrete offense"
• already commenced her criminal scheme by taking hold of Whiazel by the hand and leading
FACTS: her out of the school premises
• September 27, 1994 11:30 am: Cecilia Caparos, a neighbor of Whiazel Soriano, waiting for her
two children inside the compound of the Aurora A. Quezon Elementary School when she saw
Whiazel held on the hand and being led away by Rosemarie de la Cruz. Knowing that Whiazel was
enrolled in the afternoon class, she went after them and asked de la Cruz where she was going
with Whiazel. De la Cruz answred that she was asked by Rowena Soriano, Whiazel’s mother, to
bring Whiazel to her. Then, Caparos asked Whiazel the same question, Whiazel said to look for De
la Cruz’ child. During this time, Whiazel told De la Cruz that she wanted to go. But De la Cruz
refused and held her hand. The inconsistent answer, scratches on Whiazel’s face and terrified look
made her suspicious so she told De la Cruz to bring Whiazel to the teacher was surprised and
reasoned out but soon agreed. When they arrived, Whiazel cried.
• When Eufemia Magpantay, guidance teacher, asked De la Cruz what she was doing with
Whiazel, De la Cruz told her she was looking for the school dentist. This was also her answer when
they went to the principal.
• Gorgonia Nieva, De la Cruz’ mother-in-law: on the day prior to the incident, De la Cruz’ asked
her to look for Dr. Luisa Medina, a dentist because her daughter was sick. Since Nieva heard that
Dr. Luisa Medina may be found at the Aurora A. Quezon Elementary School, she accompanied De
la Cruz there at around 11:00 am.
• De la Cruz: she asked; guard where the clinic was. The guard gave her directions, and told her
to pass through the same gate on her way out. When she got to the clinic, no one was there so she
left. On her way out, she saw Whiazel and who walked with her. She did not hold, look or even
smile at the child. But, before she could get out she was seen by Caparos.
• RTC: kidnapping and serious illegal detention of a minor

ISSUE: W/N there is a consummate crime.

HELD: NO. MODIFIED attempted kidnapping and serious illegal detention

• the felony committed is kidnapping and serious illegal detention of a minor in the attempted
stage only
• The attempted phase of a felony is defined as when the offender commences the commission

28
G.R. No. 185195 March 17, 2010
VIOLETA BAHILIDAD, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
Before us is a petition for review on certiorari assailing the Decision 1 of the Sandiganbayan in
Criminal Case No. 28326, convicting petitioner Violeta Bahilidad and co-accused Amelia Carmela
C. Zoleta of the complex crime of Malversation of Public Funds through Falsification of Public
Documents.
Acting on a complaint filed by a "Concerned Citizen of Sarangani Province" with the Office of the
Ombudsman-Mindanao against Mary Ann Gadian, Amelia Carmela Zoleta, both assigned to the
Office of the Vice-Governor, and a certain Sheryll Desiree Tangan, from the Office of the
Sangguniang Panlalawigan, for their alleged participation in the scheme of giving fictitious grants
and donations using funds of the provincial government, a special audit was conducted in
Sarangani province. The Special Audit Team, created for the purpose, conducted its investigation
from June 1 to July 31, 2003, and submitted the following findings:
1. Release of financial assistance intended to NGOs/POs and LGUs were fraudulently and
illegally made thus local development projects do not exist resulting in the loss of
₱16,106,613.00 on the part of the government.
2. Financial Assistance were also granted to Cooperatives whose officials and members
were mostly government personnel or relative of the officials of Sarangani Province
resulting to wastage and misuse of government fund amounting to ₱2,246,481.00. 2
Included in the list of alleged fictitious associations that benefited from the financial assistance
given to certain Non-Governmental Organizations (NGOs), People’s Organizations (POs), and Local
Governmental Units (LGUs) was Women in Progress (WIP), which received a check in the amount
of ₱20,000.00, issued in the name of herein petitioner Bahilidad, as the Treasurer thereof.
Based on its findings, the Special Audit Team recommended the filing of charges of malversation
through falsification of public documents against the officials involved. Thus, the following
Information was filed:
That on January 24, 2002, or prior or subsequent thereto in Sarangani Province, Philippines, and
within the jurisdiction of this Honorable Court, accused Felipe Katu Constantino, a high-ranking
public officer, being the Vice-Governor of the Province of Sarangani, Maria D. Camanay, Provincial
Accountant, Teodorico F. Diaz, Provincial Board Member, Amelia Carmela C. Zoleta, Executive
Assistant III, all accountable public officials of the Provincial Government of Sarangani, by reason
of the duties of their office, conspiring and confederating with Violeta Balihidad, private individual,
the public officers, while committing the offense in relation to office, taking advantage of their
respective positions, did then and there willfully, unlawfully and feloniously take, convert and
misappropriate the amount of TWENTY THOUSAND PESOS (₱20,000.00), Philippine Currency, in
public funds under their custody, and for which they are accountable, by falsifying or causing to be
falsified the corresponding Disbursement Voucher No. 101-2002-01-822 and its supporting
documents, making it appear that financial assistance had been sought by Women in Progress,
Malungon, Sarangani, represented by its President Amelia Carmela C. Zoleta, when in truth and in
fact, the accused fully knew well that no financial assistance had been requested by the said group
and her association, nor did Amelia Carmela C. Zoleta and her association receive the
aforementioned amount, thereby facilitating the release of the above-mentioned public funds in
the amount of TWENTY THOUSAND PESOS (₱20,000.00) through encashment by the accused at
the Land Bank of the Philippines (LBP) Check No. 36481 dated January 24, 2002 issued in the name
of Violeta Bahilidad, which amount they subsequently misappropriated to their personal use and
benefit and despite demand, the said accused failed to return the said amount to the damage and
prejudice of the government and the public interest of the aforesaid sum.
Upon arraignment, accused Constantino, Zoleta and Bahilidad pled not guilty to the charges, while
Camanay and Diaz did not appear and remain at large to date. Thereafter, during the pendency of
the case, Constantino died. Consequently, the Sandiganbayan granted the motion to dismiss the
case against him. As regards Zoleta and Bahilidad, they posted bail and the case against them
proceeded to trial.
The prosecution presented in evidence the testimonies of the following persons:
1. Helen Cailing, a State Auditor IV at the Commission on Audit (COA) and leader of the
Special Audit Team (SAT) of Sarangani Province. Cailing testified that the SAT, composed
of herself and three (3) members, in the course of the audit, discovered that the voucher
29
issued by the Office of the Vice-Governor to the WIP violated specific COA Guidelines 3.1,
3.2, 3.4, 3.7, 3.10 and 4.4. The guidelines required the monitoring, inspection and
evaluation of the project by the provincial engineer if an infra-project and by the
provincial agriculturist if it is a livelihood project. Cailing further testified that, based on
their audit, WIP appeared to be headed by Zoleta, who was the daughter of Vice-Governor
Constantino, and simultaneously an Executive Assistant III in the latter’s office.
2. Luttian Tutoh, Region XII Director of the Cooperative Development Authority (CDA),
testified on the certification3 she issued that WIP and Women in Development (WID) were
not registered cooperatives. Tutoh further testified that (1) the certification was based on
the listing prepared by the Assistant Regional Director; (2) the Certification was issued
upon the instruction of the CDA Chairman, who received an inquiry from the Office of the
Ombudsman on whether WIP and/or WID were cooperatives registered with the CDA;
and (3) she had not come across a registered cooperative named WIP.
3. Mary Ann Gadian, Bookbinder II, designated as Computer Operator III at the Office of
the Sangguniang Panlalawigan of Sarangani from July 1993 to August 2002, who acted as
state witness, admitted in open court that she took part in the preparation and processing
of a disbursement voucher and its supporting documents involving a cash advance for
WIP sometime in 2002. Gadian, likewise, testified that she saw accused Constantino,
Camanay, Diaz, and Zoleta sign the documents, and she merely followed Zoleta’s directive
and instructions on the preparation of the disbursement voucher. Gadian further
admitted antedating and changing the date of a January 24, 2002 letter-request from WIP
to January 7, 2002 in order to make the letter appear authentic.
4. Sheryll Desiree Jane Tangan, Local Legislative Staff at the Office of the Vice-Governor
in 2002, who also acted as state witness, admitted in open court that, upon orders of
Zoleta, she helped prepare and process the request of WIP. Tangan disclosed that she was
used to signing for other persons, as instructed by Zoleta, whenever their office had legal
transactions; in this instance, she forged the signature of Melanie Remulta, the purported
secretary of WIP. Tangan then recounted that she accompanied petitioner Bahilidad to
claim and encash the check for WIP. After encashment, Bahilidad gave her a white
envelope containing the ₱20,000.00 cash. She noticed Bahalidad’s uneasiness. She was
told by Zoleta that Bahilidad was merely a dummy for that disbursement. Tangan gave
the money to Zoleta who told her that she would take care of Bahalidad.
The defense presented, as witnesses Bahilidad, Zoleta and Remulta. On the whole, the defense
denied the prosecution’s charge of malversation. The witnesses testified that WIP and WID were
registered cooperatives. To support her contention that WIP and WID were legitimate
cooperatives, Bahilidad presented a Certification from Barangay Captain Jose Mosquera containing
a list of the supposed officers of these cooperatives. Bahilidad insisted that the amount of
₱20,000.00 that she received from the Office of the Vice-Governor was, in turn, properly
distributed by WIP as loans to its members. Remulta corroborated Bahilidad’s story on this point.
As for Zoleta, she completely denied knowing Bahilidad.
After trial, the Sandiganbayan found petitioner Bahilidad and Zoleta guilty beyond reasonable
doubt of Malversation of Public Funds through Falsification of Public Documents, and disposed, as
follows:
ACCORDINGLY, accused Amelia C. Zoleta ("Zoleta") and Violeta Bahilidad ("Bahilidad"), are found
guilty beyond reasonable doubt for Malversation of Public Funds thru Falsification of Public
Documents under Article 217 of the Revised Penal Code, in relation to Article 171[,] par[.] 2[,] and
Article 48 of the same Code and are sentenced to suffer in prison the penalty of 14 years[,] 8
months and 1 day to 16 years[,] 5 months and 11 days of reclusion temporal. They also have to
suffer perpetual disqualification from holding any public office and to pay back the Province of
Sarangani the amount of Php 20,000.00 plus interest on it computed from January 2002 until the
full amount is paid.
No pronouncement is made for or against Constantino, said accused having died during the
pendency of this case, his personal and pecuniary penalties and liabilities were totally extinguished
upon his death. This Court has already ordered the dismissal of the case against him.
Since the Court did not acquire jurisdiction over the persons of the other accused, Teodorico Diaz
and Maria Camanay, the case as it pertains to them is in the meantime archived. It shall be revived
when the Court acquires jurisdiction over their person. Let an alias warrant of arrest be then issued
against them.
Costs against accused Zoleta and Bahilidad.4
Hence, this appeal by Bahilidad, questioning her conviction by the Sandiganbayan.
We find for petitioner.
30
Well-settled is the rule that findings of fact of the trial court are given great respect. But when
there is a misappreciation of facts as to compel a contrary conclusion, the Court will not hesitate
to reverse the factual findings of the trial court. In such a case, the scales of justice must tilt in favor
of an accused, considering that he stands to lose his liberty by virtue of his conviction. The Court
must be satisfied that the factual findings and conclusions of the trial court, leading to an accused’s
conviction, must satisfy the standard of proof beyond reasonable doubt.
In the instant case, petitioner was found guilty of conspiring with Zoleta and other public officials
in the commission of the crime of Malversation of Public Funds through Falsification of Public
Documents. The trial court relied on the dictum that the act of one is the act of all. The
Sandiganbayan explained petitioner’s complicity in the crime, to wit:
The facts taken together would prove the existence of conspiracry. Zoleta, as president of an
inexistent association and a co-terminus employee at the office of her father, [accused
Constantino,] initiated the request for obligation of allotments and certified and proved the
disbursement voucher. There is no doubt that accused Constantino facilitated the illegal release of
the funds by signing the questioned voucher. Without the signatures of accused Constantino,
Zoleta and Bahilidad, the amount could not have been disbursed on that particular day. When the
voucher with its supporting documents was presented to accused Constantino, Diaz and Camanay
for approval and signature, they readily signed them without further ado, despite the lack of
proper documentation and non-compliance of the rules. Zoleta had contact with the payee of the
check, Bahilidad, and received the amount. Their combined acts, coupled with the falsification of
the signature of Remulta, all lead to the conclusion that the accused conspired to defraud the
government.
Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Conspiracy need not be proven by direct evidence and may be
inferred from the conduct of the accused before, during and after the commission of the crime,
which are indicative of a joint purpose, concerted action and concurrence of sentiments. In
conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal
design of another, indicated by the performance of an overt act leading to the crime committed.
It may be deduced from the mode and manner in which the offense was perpetrated.
The circumstances that Zoleta placed her initials on the voucher knowing that there was really no
WIP, that the other accused likewise signified their approval to the disbursement and allowed
payment, and that payee received and encashed the check out of the fund of the provincial
government instead of depositing it, shows that there was connivance between the accused. The
unavoidable conclusion is that the accused were in cahoots to defraud the provincial government
and to camouflage the defraudation by using a dummy organization as a payee. 5
There is conspiracy "when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it." Conspiracy is not presumed. Like the physical acts constituting
the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While
conspiracy need not be established by direct evidence, for it may be inferred from the conduct of
the accused before, during and after the commission of the crime, all taken together, however,
the evidence must be strong enough to show the community of criminal design. For conspiracy to
exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the
product of intentionality on the part of the cohorts. 6
It is necessary that a conspirator should have performed some overt act as a direct or indirect
contribution to the execution of the crime committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of moral assistance to
his co-conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators.7 Hence, the mere presence of an accused at the
discussion of a conspiracy, even approval of it, without any active participation in the same, is not
enough for purposes of conviction.81avvphi1
In the instant case, we find petitioner’s participation in the crime not adequately proven with moral
certainty. Undeniably, petitioner, as a private individual, had no hand in the preparation,
processing or disbursement of the check issued in her name. A cursory look at the disbursement
voucher (No. 101-2002-01-822) reveals the following signatures: signature of Board Member
Teodorico Diaz certifying that the cash advance is necessary, lawful and incurred under his direct
supervision; signature of Provincial Accountant Camanay certifying to the completeness and
propriety of the supporting documents and to the liquidation of previous cash advances; signature
of Moises Magallona, Jr. over the name of Provincial Treasurer Cesar M. Cagang certifying that
cash is available; signature of Constantino, with the initials of Zoleta adjacent to his name,
certifying that the disbursement is approved for payment, and with petitioner’s signature as the
payee.9
The SAT reported that the check was payable to the alleged Treasurer, Bahalidad, instead of to
Women in Progress; that the check was encashed when it should have been for deposit only; and
that there was also failure of the provincial agriculturist to monitor and submit an evaluation
report on the project.10 Based on this SAT report, the Sandiganbayan particularly pointed to
petitioner’s indispensable participation in the crime, being the payee of the check, because
31
without her signature, the check would not have been encashed, and the funds would not have
been taken from the coffers of the provincial government. Other than her being named as the
payee, however, there were no overt acts attributed to her adequate to hold her equally guilty of
the offense proved. There was no showing that petitioner had a hand in the preparation of the
requirements submitted for the disbursement of the check. There was no evidence presented that
she was instrumental to the issuance of the check in favor of WIP, nor was there any showing that
she interceded for the approval of the check. Why the check was issued in her name and not in the
name of WIP is beyond cavil, but this was not incumbent upon her to question.
Time and time again, this Court has emphasized the need to stamp out graft and corruption in the
government. Indeed, the tentacles of greed must be cut and the offenders punished. However,
this objective can be accomplished only if the evidence presented by the prosecution passes the
test of moral certainty. Where doubt lingers, as in this case, the Court is mandated to uphold the
presumption of innocence guaranteed by our Constitution to the accused.15
WHEREFORE, the petition is GRANTED. The assailed Decision is SET ASIDE. Petitioner is ACQUITTED
on reasonable doubt.

On being informed by Melanie Remulta that WIP’s request for financial assistance was granted, SO ORDERED.
petitioner went to the provincial capitol to claim the check, because the check was issued in her
name as the Treasurer of WIP. She later encashed the check and distributed the proceeds to the
different members of WIP. There were acknowledgment receipts dated February 7, 2002, signed
by the different members of the cooperative, in varying amounts of ₱3,000.00, ₱2,000.00 and
₱500.00, all of which prove that the amount of ₱20,000.00 was disbursed for the benefit of the
members of the cooperative.11

The Sandiganbayan faulted petitioner for immediately encashing the check, insisting that she
should have deposited the check first. Such insistence is unacceptable. It defies logic. The check
was issued in petitioner’s name and, as payee, she had the authority to encash it. The
Disbursement Voucher (No. 101-2002-01-822) clearly states that she is the WIP treasurer, and the
purpose of the voucher is "to cash advance financial assistance from grants and donations for
Winds Malugon, Sarangani as per supporting papers hereto attached." Petitioner’s action cannot,
in itself, be considered as specious. There was no showing that petitioner had foreknowledge of
any irregularity committed in the processing and disbursement of the check, 12 or that the COA
Rules required that the check had to be deposited in the bank first, or that an evaluation report
from the provincial agriculturist had to be submitted. Evil intent must unite with the unlawful act
for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal
mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will
exempt the doer from felonious responsibility.13

All told, there is reasonable doubt as to petitioner’s guilt. Where there is reasonable doubt, an
accused must be acquitted even though his innocence may not have been fully established. When
guilt is not proven with moral certainty, exoneration must be granted as a matter of right. 14

Finally, we reiterate what we have long enjoined:

32
G.R. No. 93028 July 29, 1994 place, the confidential informer pointed out appellant to Lopez who consequently approached
appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to
vs. Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as
MARTIN SIMON y SUNGA, respondent. payment. Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and
The Solicitor General for plaintiff-appellee. the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp
Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the
Ricardo M.Sampang for accused-appellant.
investigator.4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
REGALADO, J.: took the marked money from appellant.5

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
violation of Section 4, Article II of Republic Act stationed farthest from the rest of the other members, that is, around two hundred meters away
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
from his companions. He did not actually see the sale that transpired between Lopez and appellant
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold
but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one
four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of
who conducted the custodial investigation of appellant wherein the latter was apprised of his
the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive
rights to remain silent, to information and to counsel. Appellant, however, orally waived his right
for marijuana.1
to counsel.6

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following
his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on
the merits ensued and was duly concluded.
I instead of "20". He agreed to the correction since they were the ones who were personally and
The evidence on record shows that a confidential informant, later identified as a NARCOM
operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug
activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante,
Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team
composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from
Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had
coordinated with the police authorities and barangay officers thereof. When they reached the
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated"
which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried
leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed
on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However,
Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40",
directly involved in the purchase of the marijuana and the arrest of appellant. 7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day
after the latter's apprehension, and the results were practically normal except for his relatively
high blood pressure. The doctor also did not find any trace of physical injury on the person of
appellant. The next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit

33
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8
As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the
day in question, at around 4:30 p.m., he was watching television with the members of his family in
their house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed
that they were taking a different route. While on board, he was told that he was a pusher so he
attempted to alight from the jeep but he was handcuffed instead. When they finally reached the
camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach
eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on
the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the
reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He
admitted having escaped from the NARCOM office but claimed that he did so since he could no
longer endure the maltreatment to which he was being subjected. After escaping, he proceeded
to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around
6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister
to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for
three days.9
Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even before the latter's
arrest.10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital,
declared that she treated appellant for three days due to abdominal pain, but her examination
revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of
slight or serious external injury, abrasion or contusion on his body. 11
On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended,
and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand
pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered
confiscated in favor of the Government.12
Appellant now prays the Court to reverse the aforementioned judgment of the lower court,
contending in his assignment of errors that the latter erred in (1) not upholding his defense of
"frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in
evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13
At the outset, it should be noted that while the People's real theory and evidence is to the effect
the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea
bags were merely confiscated subsequently from his possession, 14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered four tea bags of
marijuana dried leaves.15 In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense
is not charged herein.16
To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration. 18 It
must, therefore, be established beyond doubt that appellant actually sold and delivered two tea
bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two
twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited
drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October
22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably
testified as to how the sale took place and his testimony was amply corroborated by his
teammates. As between the straightforward, positive and corroborated testimony of Lopez and
the bare denials and negative testimony of appellant, the former undeniably deserves greater
weight and is more entitled to credence.
We are aware that the practice of entrapping drug traffickers through the utilization of poseur-
buyers is susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for
judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and
arrest were not effected in a haphazard way, for a surveillance was conducted by the team before
the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from
the fact that they are presumed to have regularly performed their official duty. 21 Such lack of
dubious motive coupled with the presumption of regularity in the performance of official duty, as
34
well as the findings of the trial court on the credibility of witnesses, should prevail over the self-
serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the
mere shifting sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to
controvert the charge, he does not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein,23confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight
of 3.8 grams of marijuana.24 Thus, the corpus delicti of the crime had been fully proved with
certainty and conclusiveness.25
Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of
Property Seized/Confiscated," he signed it as the one who seized the same. 26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legalseizure or confiscation thereof as the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him
were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust
operations.28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his
testimony, as follows:
Q: Is it the standard operating procedure of your unit that in
conducting such operation you do not anymore provide a
powder (sic) on the object so as to determine the thumbmark
or identity of the persons taking hold of the object?
A: We were not able to put powder on these denominations
because we are lacking that kind of material in our office since
that item can be purchased only in Manila and only few are
producing that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime
Laboratory, CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot
make a request for that powder because they, themselves, are
using that in their own work, sir.29
The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.
Again, appellant contends that there was neither a relative of his nor any barangay official or
civilian to witness the seizure. He decries the lack of pictures taken before, during and after his
arrest. Moreover, he was not reported to or booked in the custody of any barangay official or
police authorities.31 These are absurd disputations. No law or jurisprudence requires that an arrest
or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught
appellant in flagrante delicto, they were not only authorized but were also under the obligation to
effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
35
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks
was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of
the marked bills from him.33
However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit
admissions of the crime charged. They were obtained in violation of his right as a person under
custodial investigation for the commission of an offense, there being nothing in the records to
show that he was assisted by counsel.34 Although appellant manifested during the custodial
investigation that he waived his right to counsel, the waiver was not made in writing and in the
presence of counsel,35 hence whatever incriminatory admission or confession may be extracted
from him, either verbally or in writing, is not allowable in evidence.36 Besides, the arrest report is
self-serving and hearsay and can easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be
extricated from his predicament since his criminal participation in the illegal sale of marijuana has
been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires
merely the consummation of the selling transaction37 which happens the moment the buyer
receives the drug from the seller.38 In the present case, and in light of the preceding discussion,
this sale has been ascertained beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana to a total
stranger.39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing,
when done on a small scale as in this case, belongs to that class of crimes that may be committed
at any time and in any place.40 It is not contrary to human experience for a drug pusher to sell to a
total stranger,41 for what matters is not an existing familiarity between the buyer and seller but
their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While
there may be instances where such sale could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of how the accused supposedly
acted on that occasion, we can safely say that those exceptional particulars are not present in this
case.
Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under
custody.43 This he asserts to support his explanation as to how his signatures on the documents
earlier discussed were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it
must not only proceed from the mouth of a credible witness but must be credible in itself such as
the common experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the defense,46 testified on
the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the
person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer
from which he had been suffering even before his arrest. 47 His own brother even corroborated
that fact, saying that appellant has had a history of bleeding peptic ulcer.48
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason
whatsoever for not divulging the same to his brother who went to see him at the camp after his
arrest and during his detention there.49Significantly, he also did not even report the matter to the
authorities nor file appropriate charges against the alleged malefactors despite the opportunity to
do so50 and with the legal services of counsel being available to him. Such omissions funnel down
to the conclusion that appellant's story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all
costs.51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for
his isolation from society and it was providential that it came about after he was caught in the very
act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of
affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was
further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience
necessarily affects the original disposition of this case and entails additional questions of law which
we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar,
are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as
follows:
xxx xxx xxx
36
 Sec. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. — The penalty of reclusion
perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of
such transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of
the Proceeds or Instrument of the Crime. — The penalties for
offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections
14, 14-A, 15 and 16 of Article III of this Act shall be applied if
the dangerous drugs involved is in any of the following
quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing
quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the
quantity.
1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic
Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided
thereunder, pursuant to Article 22 of the Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to
and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said
article would not apply to those convicted of drug offenses since habitual delinquency refers to
convictions for the third time or more of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification.55
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not the accused has
applied for it, just as would also all provisions relating to the prescription of the
crime and the penalty.
If the judgment which could be affected and modified by the reduced penalties provided in
Republic Act No. 7659 has already become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic considerations would warrant and
necessitate the matter being brought to the judicial authorities for relief under a writ of habeas
corpus.56
2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended,
imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away,
37
distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the
amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of
indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting
provisions in order to give effect to the whole law,57 we hereby hold that the penalty to be imposed
where the quantity of the drugs involved is less than the quantities stated in the first paragraph
shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also
concordant with the fundamental rule in criminal law that all doubts should be construed in a
manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by
the imposable range of penalties under the second paragraph of Section 20, as now modified, the
law provides that the penalty shall be taken from said range "depending upon the quantity" of the
drug involved in the case. The penalty in said second paragraph constitutes a complex one
composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion
temporal. In such a situation, the Code provides that each one shall form a period, with the lightest
of them being the minimum, the next as the medium, and the most severe as the maximum
period.58
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however,
is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of
the drug subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the
Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the
quantity of the drug involved. Thereby, the modifying circumstances will not altogether be
disregarded. Since each component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the modifying circumstances
can be used to fix the proper period of that component penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana
involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to
499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death.60
Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty
of prision correccional is consequently indicated but, again, another preliminary and cognate issue
has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty,
it consists of three periods as provided in the text of and illustrated in the table provided by Article
76 of the Code. The question is whether or not in determining the penalty to be imposed, which is
here to be taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the
Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said
cases, however, reveals that the reason therefor was because the special laws involved provided
their own specific penalties for the offenses punished thereunder, and which penalties were not
taken from or with reference to those in the Revised Penal Code. Since the penalties then provided
by the special laws concerned did not provide for the minimum, medium or maximum periods, it
would consequently be impossible to consider the aforestated modifying circumstances whose
main function is to determine the period of the penalty in accordance with the rules in Article 64
of the Code.
This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special
laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.
38
The situation, however, is different where although the offense is defined in and ostensibly from arresto mayor to
punished under a special law, the penalty therefor is actually taken from the Revised Penal Code death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under mayor to prision mayor; and Presidential Decree
the system of penalties native to said Code. When, as in this case, the law involved speaks of prision No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor
correccional, in its technical sense under the Code, it would consequently be both illogical and may involve prision mayor, reclusion temporal, reclusion perpetua or death.
absurd to posit otherwise. More on this later.
Another variant worth mentioning is Republic Act No. 6539
For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period months and not more than 17 years and 4 months, when committed without violence or
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or intimidation of persons or force upon things; not less than 17 years and 4 months and not more
aggravating circumstance. than 30 years, when committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of the carnapped
5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed vehicle is killed.
for offenses under special laws would be necessary.
With respect to the first example, where the penalties under the special law are different from and
Originally, those special laws, just as was the conventional practice in the United States but are without reference or relation to those under the Revised Penal Code, there can be no
differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided suppletory effect of the rules for the application of penalties under said Code or by other relevant
for one specific penalty or a range of penalties with definitive durations, such as imprisonment for statutory provisions based on or applicable only to said rules for felonies under the Code. In this
one year or for one to five years but without division into periods or any technical statutory type of special law, the legislative intendment is clear.
cognomen. This is the special law contemplated in and referred to at the time laws like the
Indeterminate Sentence Law61 were passed during the American regime. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it
is true that the penalty of 14 years and
Subsequently, a different pattern emerged whereby a special law would direct that an offense 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period
thereunder shall be punished under the Revised Penal Code and in the same manner provided of reclusion temporal,such technical term under the Revised Penal Code is not given to that penalty
therein. Inceptively, for instance, Commonwealth Act No. 30362 penalizing non-payment of salaries for carnapping. Besides, the other penalties for carnapping attended by the qualifying
and wages with the periodicity prescribed therein, provided: circumstances stated in the law do not correspond to those in the Code. The rules on penalties in
the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the
Sec. 4. Failure of the employer to pay his employee or laborer as required by same formulation.
section one of this Act, shall prima facie be considered a fraud committed by
such employer against his employee or laborer by means of false pretenses On the other hand, the rules for the application of penalties and the correlative effects thereof
similar to those mentioned in article three hundred and fifteen, paragraph four, under the Revised Penal Code, as well as other statutory enactments founded upon and applicable
sub-paragraph two (a) of the Revised Penal Code and shall be punished in the to such provisions of the Code, have suppletory effect to the penalties under the former Republic
same manner as therein provided.63 Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
Thereafter, special laws were enacted where the offenses defined therein were specifically special laws, the fact that the penalties for offenses thereunder are those provided for in the
punished by the penalties as technically named and understood in the Revised Penal Code. These Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties
are exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged for felonies under the Code the corresponding application to said special laws, in the absence of

39
any express or implicit proscription in these special laws. To hold otherwise would be to sanction
an indefensible judicial truncation of an integrated system of penalties under the Code and its
allied legislation, which could never have been the intendment of Congress.
In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution
that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We
said therein that —
We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties
as prescribed in the Revised Penal Code, which is not for penalties as are
ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be
deemed as an amendment of the Revised Penal Code, with respect to the offense
of theft of large cattle (Art. 310) or otherwise to be subject to applicable
provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64
of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal
Code shall be "supplementary" to special laws, this Court held that where the
special law expressly grants to the court discretion in applying the penalty
prescribed for the offense, there is no room for the application of the provisions
of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty
prescribed by the law. In such case, the court must be guided by the rules
prescribed by the Revised Penal Code concerning the application of
penalties which distill the "deep legal thought and centuries of experience in the
administration of criminal laws." (Emphasis ours.)66
Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much
more reason should the provisions of said Code on the appreciation and effects of all attendant
modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications
of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if
they would result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in the discussion on the
role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of
the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree
of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of
penalties in Article 71, are the stage of execution of the crime and the nature of the participation
of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary
mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67
and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles
64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the
aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results
which could not have been contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner
not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by
analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two
penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist
of as many penalties which follow the former in the scale in Article 71. If this rule were to be
applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would
be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by
still one or two degrees, which must each likewise consist of three penalties, since only the
penalties of fine and public censure remain in the scale.
40
The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order not to depreciate the seriousness of
drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to
be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately
resolved will exceed one year of imprisonment.68 The more important aspect, however, is how the
indeterminate sentence shall be ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under
the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." We hold that this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was not taken from and is without
reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may
be said that the "offense is punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed
by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of
penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the
first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea expositio.69
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said
sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid
Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposedunder the rules of said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)
A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions.
Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is
considered is the penalty actually imposed and not the penalty imposable under the law,70and
that reclusion perpetua is likewise embraced therein although what the law states is "life
imprisonment".
What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence
of the principles of literal interpretation, which have been rationalized by comparative decisions
of this Court; of historical interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next
lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity
in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode
of interpretation.71
The indeterminate Sentence Law is a legal and social measure of compassion, and should be
liberally interpreted in favor of the accused.72 The "minimum" sentence is merely a period at
which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed
to serve the balance of his sentence outside of his confinement.73 It does not constitute the totality
41
of the penalty since thereafter he still has to continue serving the rest of his sentence under set
conditions. That minimum is only the period when the convict's eligibility for parole may be
considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or
his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower
to prision correccional which is the maximum range we have fixed through the application of
Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the
minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision
correccional. The difference, which could thereby even involve only one day, is hardly worth the
creation of an overrated tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court
a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months
of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.
Bellosillo, J., is on leave.
Separate Opinions
DAVIDE, JR., J., concurring and dissenting:
I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed,
taking into account the quantity of the dangerous drugs involved, would be prision correccional.
I
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:
in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
prescribed by the same (Emphasis supplied).
42
There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and
is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.
On the other hand, an offense is considered punished under any other law (or special law) if it is
not defined and penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
definition and the penalty therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still
the special law that defines the offense and imposes a penalty therefor, although it adopts the
Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an offense "punished or
punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture which is
extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section
20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the Indeterminate Sentence
Law, the indeterminate sentence to be meted on the accused should be that
whose minimum should not be less than the minimum prescribed by the special law (the
Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal,and that pursuant to Article 77 of the Revised
Penal Code, each should form a period, with the lightest of them being the minimum, the next as
the medium, and the most severe as the maximum, yet, considering that under the said second
paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal
transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered
as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the
modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of
the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in
the second paragraph of Section 20 shall each be considered as an independent
principal penalty, and that the lowest penalty should in any event be prision
correccional in order to depreciate the seriousness of drug offenses.
Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved —
by two degrees, or to prision correccional, if there are two or more mitigating circumstances and
no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is
a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
43
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all
would be allowed.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application
of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
be reclusion temporal— may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circumstances. Yet, an accused who is
found guilty of possession of only one (1) gram of marijuana — in which case the penalty to be
imposed is prision correccional — would not be entitled to a reduction thereof even if he has the
same number of privileged mitigating circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he
is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
Penal Code, which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of Article 80 of this Code,
the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who
is not exempted from liability by reason of the court having
declared that he acted with discernment, a discretionary
penalty shall be imposed, but always lower by two degrees at
least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age
the penalty next lover than that prescribed by law shall be
imposed, but always in the proper period.
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as
amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in
one aspect and not to apply it in another.
Feliciano and Quiason, JJ., concur.
# Separate Opinions
DAVIDE, JR., J., concurring and dissenting:
I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed,
taking into account the quantity of the dangerous drugs involved, would be prision correccional.
I
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:
in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said
44
 Code, and the minimum which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and
is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.
On the other hand, an offense is considered punished under any other law (or special law) if it is
not defined and penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
definition and the penalty therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still
the special law that defines the offense and imposes a penalty therefor, although it adopts the
Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an offense "punished or
punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture which is
extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section
20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the Indeterminate Sentence
Law, the indeterminate sentence to be meted on the accused should be that
whose minimum should not be less than the minimum prescribed by the special law (the
Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal,and that pursuant to Article 77 of the Revised
Penal Code, each should form a period, with the lightest of them being the minimum, the next as
the medium, and the most severe as the maximum, yet, considering that under the said second
paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal
transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered
as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the
modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of
the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
45
circumstance, then the penalty to be imposed should be prision correccional in its minimum period. imposed is prision correccional — would not be entitled to a reduction thereof even if he has the
Yet, the majority opinion puts a limit to such a rule. It declares: same number of privileged mitigating circumstances as the former has.

The Court rules, therefore, that while modifying circumstances may be Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he
appreciated to determine the periods of the corresponding penalties, or even is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
reduce the penalty by degrees, in no case should such graduation of penalties Penal Code, which reads:
reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
the second paragraph of Section 20 shall each be considered as an independent When the offender is a minor under eighteen years and his case is one coming
principal penalty, and that the lowest penalty should in any event be prision under the provisions of the paragraph next to the last of Article 80 of this Code,
correccional in order to depreciate the seriousness of drug offenses. the following rules shall be observed:

Simply put, this rule would allow the reduction from reclusion 1. Upon a person under fifteen but over nine years of age, who
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved — is not exempted from liability by reason of the court having
by two degrees, or to prision correccional, if there are two or more mitigating circumstances and declared that he acted with discernment, a discretionary
no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is penalty shall be imposed, but always lower by two degrees at
a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under least than that prescribed by law for the crime which he
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be committed.
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision 2. Upon a person over fifteen and under eighteen years of age
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all the penalty next lover than that prescribed by law shall be
would be allowed. imposed, but always in the proper period.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as
second paragraph involving the same range of penalty, we both allow and disallow the application amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in
of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the one aspect and not to apply it in another.
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
Feliciano and Quiason, JJ., concur.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
be reclusion temporal— may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circumstances. Yet, an accused who is
found guilty of possession of only one (1) gram of marijuana — in which case the penalty to be

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