RULE 115 RIGHTS OF ACCUSED SECTION 1. Rights of accused at the trial.

In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law.

[G.R. Nos. 136733-35. December 13, 2001]

PEOPLE OF THE PHILIPPINES, appellee, vs. ELADIO VIERNES y ILDEFONSO, appellant. DECISION PANGANIBAN, J.:

Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a more severe penalty than that imposed in the original decision. This is especially true in a case in which the new and amended penalty imposed is death.

The Case Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 053497. The assailed Decision convicted appellant of two counts of rape and one count of attempted rape. It disposed as follows: WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows: 1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit; 2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of this suit; and 3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article [3] 2229 of the same Code and the costs of this suit. On the other hand, the assailed Order increased the penalties as follows: WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and sentences him, as follows: 1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of this suit;
[1] [2]

2.

CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to pay the costs of this suit; and CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00, as exemplary damages, [4] pursuant to Article 2229 of the same Code and the costs of this suit.

3.

Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc (assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with rape committed as follows: That on or about the 29 day of September, 1996 at about 10:00 oclock in the morning at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor below 12 years old, against her will and consent to her damage and prejudice [5] in such amount as may be awarded to her under the provision of the Civil Code. The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape: That on or about the 18th day of August 1997 at about 12:00 oclock noon, at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, did then and there wilfully, unlawfully and feloniously, by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor of 12 years old against her will and consent to her damage and prejudice in such amount as may be [6] awarded to her under provisions of the Civil Code. Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape: That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the mother of the victim, by means of force and intimidation and with lewd design pursuant to his carnal desire, did then and there willfully, unlawfully and feloniously commence the commission of the felony of rape directly by overt acts against the undersigned complainant who is a minor below 12 years old, by then and there undressing her and going on top of her with his exposed private organ but did not perform all the acts of execution which should have produced the said felony [7] because the undersigned offended party resisted. Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the same court. Later, [8] all the cases were consolidated in Branch 12. On arraignment, appellant pleaded not guilty. assailed Decision.
[9] th

After trial in due course, the lower court rendered the

In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted the Motion via the assailed Order.

The Facts

Version of the Prosecution In its Brief,

[10]

the Office of the Solicitor General presents the following narration of facts:

Catherine Linatoc stood quietly by the door of the toilet of appellants her mothers common-law husband house. Her skirts hemlines were slowly falling to her knees vainly covering the panty that were pulled down mid-way her lower legs. This was the third of a series of dismaying sex that she and appellant had been through. Like the others before this one, there was by appellant much pulling, shoving and forcible grasping of her hands, thus rendering her immobile for three minutes or so. The third rape happened in appellants house in Tibig, Lipa City, around noontime of August 18, 1997. Appellant then bidded [sic] the two brothers and a step-brother of Catherine Linatoc to clean the his tricycle, which was parked on the side of the street across his house. They followed his order. Appellant also instructed Catherine Linatoc to fetch water for the house toilet. She obliged, returning with two pails of it. She deposited them by the door of the toilet. Turning about, Catherine Linatoc was surprised to find appellant behind her. In quick succession, appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed his own pants down. Grasping her hands tightly with one hand, appellant began inserting his penis into her vagina. She resisted to no avail. His penis established a comfortable slide into and out of her [organ], as the pace quickened for about three minutes. The gyration was furious. After appellant spurted out, he backed off and left saying nothing. Frightened and crying, Catherine Linatoc went to her great-grandmothers abode in San Guillermo, Lipa City. She reported the incident to this elder, and recounted some more. Catherine Linatoc told her greatgrandmother of two other acts of sexual abuse by appellant. The first one, she narrated, happened on September 29, 1996, about ten in the morning[;] and the second, on March 1997 around noon-time. The first rape happened on September 29, 1996 in appellants house. Catherine Linatoc was on the ground floor of the house when so suddenly appellant sprung from wherever he was, grabbed and carried her to the second floor. The second floor was just three steps from the ground floor. He then undressed her, taking off her sando, skirt and panty. He undressed himself too, and then floored both their bodies, [his] on top of her. He caressed her breasts and started inserting his penis into her vagina. Appellant held her hands tightly and fought off her struggle. There was push and pull for about three minutes, then appellant came through. Appellant dressed up, and before walking away, apologized to her. It would be the first and last rape, he said. There was soon the second sexual abuse. In March 1997, about noontime, using the same strategy as he did in the [first] rape, appellant unburdened himself on Catherine Linatoc. From nowhere, appellant appeared. He dragged her to the second floor where he undressed her and himself. He mightily threw her to the floor, his sweaty body covering hers. Appellant engaged in the now familiar gyration once again. This time, however his penis landed on the thighs of the victim as insertion, because of her struggle and vaginas virginal qualities, became frustratingly diffi cult. Between her thighs appellant thrusted his penis. He satisfied himself just the same. The great-grandmother was helpless to remedy the abuse done to Catherine Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also arrived. Catherine Linatoc had her medico-legal examination with these results.: x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small amounts of whitish discharge. The medico-legal examination was performed by Dr. Helen S. Dy. The present criminal complaints [11] against appellant were thereafter filed.

Version of the Defense Appellant denies the charges against him. Claiming to have been elsewhere at the time of the commission of the alleged crimes, he submits the following counterstatement of the facts: 1) ELADIO, at the lower court, stated that he is the common law husband of Lina de la Cruz-Linatoc (mother of the alleged victim Catherine Linatoc). He is a security guard and at the same time, a tricycle driver. On September 29, 1996 he was living with Lina, together with Catherine, his two sons and other relatives. On September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of her great grandmother and stayed therein even beyond September 29, 1996. Therefore, it is impossible for him (ELADIO) to have attacked Catherine sexually on September 29, 1996. It is not true that he attempted to rape Catherine in March of 1997 because he was on duty at that time. Their company logbook will bear witness thereto. (Exhibit 2, Original Records) On August 18, 1997 it is not true that he raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998) 2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of ELADIO that Catherine was no longer in their house on September 29, 1996 and that ELADIO could not have abused Catherine sexually. Catherines charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998). xxx D. Sur-Rebuttal Evidence. ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case.
[12]

xxx

xxx

Ruling of the Trial Court The court a quo held that the testimony of Catherine Linatoc -- both on direct and on crossexamination -- was clear, positive and steadfast. Corroborated by the medicolegal examination conducted on her, it was replete with details that jibed on material points. The prosecution successfully proved that she was the daughter of appellants common-law wife and that, at the time of the crime, she was 12 years old. The declarations of complainant were accorded full faith and credence on the theory that she would not publicly acknowledge the defilement of her virtue or subject herself to public humiliation, if her purpose was not to obtain justice for the wrong committed. There is no evidence that she was a woman of loose morals or that she had any ill motive to falsely accuse appellant. On the other hand, appellants denial and alibi were unsubstantiated and self -serving; hence, they deserve no weight in law. They cannot stand against Catherines positive testimony. In the assailed Order, the trial court noted that the prosecutions Motion was unopposed. It ruled that the increase in the penalty did not place appellant in double jeopardy. Hence, this appeal.
[13]

The Issues In his Brief,

[14]

appellant raises this sole alleged error:

The lower court has committed an error in convicting the accused-appellant of the crimes charged and on meting out on him the supreme penalty of death, more particularly in Criminal Cases Nos. 0532-97 and 0534-97. An appeal from a criminal conviction, especially one involving the death penalty, throws the whole case open for review. Thus, it becomes the duty of the reviewing court to correct any error in the [15] appealed judgment, whether or not it is made the subject of an assignment of error. In this light, the Court believes that a second issue needs to be taken up, namely: Whether the trial court erred in increasing the penalties via the assailed Order.

This Courts Ruling The trial court was correct in convicting appellant in accordance with the challenged Decision, but was wrong in imposing the new penalties through the assailed Order.

First Issue: Appellants Culpability After a thorough review of the pleadings, the transcripts of stenographic notes and other records of the case, we are convinced that the court a quo did not err in giving credence to the testimonies of the victim and the other prosecution witnesses. The testimony of private complainant, detailing how she was abused by appellant on two separate occasions and how he tried to rape her once more, was clear and convincing. We quote at length: Q A Q A Q A Q A Q A Q A Q A While you were in your house on that date, September 29, 1996, 10:00 oclock in the morning, do you remember of any unusual incident that transpired if any? Yes, sir. What was that unusual incident that transpired? After my mother left, I was pulled sir. By whom, who pulled you? My step father, sir. Where were you brought, towards what direction? Towards the second floor of our house and to the place where we sleep, sir. By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29, 1996, what kind of house is that? It is made of Sawali, sir. How about the flooring, how many floors does it have? Three (3) steps sir. What do you mean by three (3) steps? Our stairs is made of three (3) steps, sir.

Court: From the ground floor?

A Q A Q

Yes, sir. What is located after going this stairs composed of three (3) steps? That is the place where we sleep sir. After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio Viernes do to you after reaching that upper portion of your house, if he did anything?

Atty. Dimaandal Leading your Honor. Court Answer. A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q He undressed me sir. What were you wearing that Eladio Viernes took of[f] from your body? I was wearing a skirt which was my uniform sir. What else I[f] any were taken of[f] from your body by Eladio Viernes? My blouse, sando and my skirt and my panty sir. After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio Viernes do on your body? He placed himself on top of me. When Eladio Viernes placed himself on top of you, what was he wearing if any? None sir. By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at that time? He was wearing pants, sir. You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was already naked, what did he do with hi[s] pants before he went on top of you? He mashed [m]y breast sir. What else did he do [to] you aside from mashing your breast? He inserted his penis into my vagina. By the way, while he was mashing your breast, what were you doing if you did anything? I was fighting him back sir. What did Eladio Viernes do when you fought him back while he was mashing your breast? He was slapping me sir. When he inserted his penis into your vagina, what did you feel? Painful, sir. Was Eladio Viernes able to actually insert his penis[?]

Atty. Dimaandal Leading your honor.

Q A Q A Q A

After Eladio Viernes inserted his private organ into your private organ, what else did he do if anything more? He did pumping motion, sir. For how long did he do this pumping motion, while his penis was inside your vagina? About three (3) minutes sir. After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside your vagina, what else did he do if he did anything more? He removed his private organ sir.
[16]

We also quote the testimony of the victim regarding appellants attempt to rape he r: Q A Q When was the second time, after September 26, 1996? In May 1997 but I do not remember the exact date sir. Are you sure about the date?

Atty. Dimaandal That is the answer of the witness. Prosecutor Thats why I am asking, are you sure about the date? A Q A Q A Q A Q May 19, 1997 sir. By the way, in [the] second incident [where] Eladio Viernes according to you raped you again, where did this happen? At Barangay Tibig, Lipa City. In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes? In the upper portion of our house at the place where we are sleeping sir. The same place where the second rape was committed? Yes, sir. Around what time did this happen, this second rape happened?

Atty. Dimaandal We make it of record that the witness cannot answer. Prosecutor The witness is thinking . . . A Q A Q A Q Noontime sir. How did this happen? He again pulled me sir. By the way on that second occasion, where was your mother? She was working sir. You said that you were again pulled, where were you brought by Eladio Viernes at the same time around?

A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q

The upper portion of our house and at the place where we were sleeping sir. After you were pulled by Eladio Viernes, what did Eladio Viernes do to you? He undressed me sir. What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that same occasion? I was wearing a skirt sir. After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything? He again placed himself on top of me sir. What was he wearing he placed himself on top of you if he was wearing anything? He was wearing pants sir. When he placed himself on top of you, where was his pants? He removed pants sir. When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second time around? He again mashed my breast sir. What did you do when Eladio Viernes again mashed your breast? I was fighting him back sir. What else did he do aside from mashing your breast, what did Eladio Viernes do to you? He was inserting his penis into my vagina sir. When Eladio Viernes was inserting his penis into your vagina, what did you do? I was struggling sir. When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your vagina? It was not inserted sir. What did Eladio Viernes do when he failed to insert his penis into your vagina? He just placed it between my thighs sir. After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?

Atty. Dimaandal May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there was no vagina [sic]. Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?

Atty. Dimaandal Leading Court Answer.

Interpreter Witness pointing to the inner portion of her two thighs Q A What did Viernes do after he put his penis between the inner portion of your two thighs? [H]e placed his penis between my thighs and he again did the pumping motion sir.
[17]

Pertinent portions of the testimony of complainant regarding her second defilement in the hands of appellant read as follows: Q A Q A Q A Q Miss Witness, on August 18, 1997 around 12:00 noon where were you? I was at home sir. What were you doing? I just arrived from school sir. You said that you were in your house, where was this house located on that date, August 18, 1997? At Barangay Tibig sir. You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa City on August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody there? My step father sir. Meaning Eladio Viernes? Yes sir. Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if he did anything upon seeing him or meeting you? He instructed our companions in the house to clean the motor tricycle sir. After instructing your companions in your house to clean the motor tricycle, what else did Eladio Viernes do, if he did anything more? He asked me to fetch two (2) containers of water sir. By the way, these your companions of your house, [sic] who where given the instruction by Eladio Viernes to clean the motor tricycle, who are these companions [sic] of your house? My two brothers and one step brother, sir. How old were these two brothers of yours and your one step brother who were given the instruction by Eladio Viernes to clean the motor tricycle? My step brother was 12 years old; my two brothers were six and 5 years old sir. How far was this tricycle from your house? Near the street sir. Around how many meters if you can calculate was this tricycle from your house or can you point distance from the place where you are sitting now to any place inside the court room?

A Q A Q A Q A Q A Q A Q A Q

Interpreter Witness pointing to the railings inside the Court room as their house and the witness pointed to the western wall of the court room as the place where the tricycle was to be around 7 meters sir.

Q A Q A Q A Q A Q

What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving the instruction from your step father Eladio Viernes to clean the motor tricycle? They followed the instruction of my step father to clean the tricycle sir. How about you when you were instructed by your step father to fetch two (2) containers of water, what did you do? I brought the water near the comfort room sir. After you brought the two (2) containers of water to the place were you said a while ago, what did Eladio Viernes do to you if he did anything? He followed me sir. After Eladio Viernes followed you, what did he do [to] you if he did anything? I was frightened sir. Why?

Atty. Dimaandal Not responsive your honor. I move to strike out the answer of the witness. Court Continue. Q A Q A Q A Q A Q A Q A Q Why did you get frightened? Because I felt that he will repeat the same thing sir. What do you mean repeat the same thing? He will again repeat raping me sir. When you got frightened, what did you do? I tried to struggle sir. Why did you struggle, what was Eladio Viernes doing [to] you? He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me from going out sir. What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the comfort room? I could not go out [o]f the comfort room because I was held by my step father sir. After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more? He pulled down my panty sir. Up to what portion was that panty of yours pulled down?

Interpreter Witness pointing to her ankle Q A Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you? He was inserting his penis into my vagina, sir. What was your position in relation to Eladio Viernes when he was inserting his penis into your vagina?

A Q A Q A Q

I was standing sir. How about Eladio Viernes, where was he in relation to you while he was inserting his penis into your vagina? He was at my back sir. What happened to this effort of Eladio Viernes in trying to insert his private organ into your private organ? It was inserted sir. You said that you were standing, what was the form or what was the position of your body aside from the fact that you were standing when Eladio Viernes was able to insert his penis into your vagina while he was at your back? I was standing and I was struggling sir. When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of your body aside from the fact that you were standing? I was standing with my knees bent sir. After Eladio Viernes was able to insert his penis into your vagina while you are in a standing position, how long was his penis inside your vagina? About three (3) minutes sir.
[18]

A Q A Q A

Catherine impressed the trial court as a decent woman [who has] not been shown to be of loose [19] morals or one who goes out with different men any time of the day or night. A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and remains consistent -- is a credible [20] witness. It is well-entrenched that the trial court is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to observe them firsthand and to note [21] their demeanor, conduct and attitude on the stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is bound by it. Despite the tender age of complainant, her accounts on direct and cross-examination were replete [22] with details that jibed on material points. Considering her young age, it would have been highly improbable for her to fabricate a charge so humiliating to her and her family, had she not been truly [23] subjected to the painful experience of sexual abuse. The moral ascendancy of appellant as the common-law husband of complainants mother takes the [24] place of force and intimidation as an element of rape, although the presence of such element is apparent from Catherines testimony.

Alibi and Corroboration Appellant denies having raped Catherine on September 29, 1996, claiming she was at her grandmothers house in San Guillermo, while he was outside his house digging a toilet pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on August 18, 1997, he was busy the whole day plying his tricycle route. The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence that deserve no weight in law. They cannot [25] be given greater evidentiary value over a credible witness testimony on affirmative matters. Except for Lina Linatocs corroboration, the only evidence supporting the alibi and denial of appellant is his own sayso. And Lina happens to be his common-law wife; thus, her testimony is necessarily suspect and cannot [26] prevail over the testimonies of more credible witnesses. Negative testimony cannot prevail over the [27] offended partys positive identification of the accused as her rapist.

Finally, for alibi to prosper, it must be shown that the accused was in another place at the time the crime was committed, and that it would have been physically impossible for him to be at the scene of the [28] crime at the time it was committed. Such physical impossibility was not proven in the present case. The Smart Tower where appellant worked as a security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.

Attempt to Settle the Case Appellant strongly denies the prosecutions assertion that he attempted to settle the case with complainants family. We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant and delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the letter reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an additional P100,000 in exchange [29] for dropping the charges against him. Under Section 27, Rule 130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

Voluntary Surrender Appellant pleads for leniency on account of his alleged voluntary surrender. We disagree. The act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an intention to save the authorities the trouble and the expense that search and capture would [30] require. Going to the police station to clear his name does not show any intent of appellant to [31] surrender unconditionally to the authorities.

Medicolegal Officers Testimony Appellant avers that the medicolegal officer who examined complainant admitted being unsure of her findings. We disagree with the assessment by appellant of the testimony of the medicolegal officer. However, even if we discount the testimony of the latter, complainants testimony by itself can sustain the formers conviction. Medical examination is not an indispensable requirement, and its absence does not affect the [32] verdict of conviction, if sufficient evidence is presented to prove the crime charged. When a rape complainant, especially one of tender age like Catherine, says that she has been raped, she in effect says all that is necessary to show that she has indeed been raped.

Civil Indemnity and Moral Damages The Solicitor General takes issue with the damages awarded by the RTC. In the assailed Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil indemnity for the attempted rape.

Recent jurisprudence has increased the indemnification for the victim in a case of consummated rape to P75,000 if the crime was committed with, or effectively qualified by, any of the circumstances [33] under which the death penalty is authorized by the applicable amendatory laws. Moral damages are pegged at P50,000 without further need of pleading or proof. Exemplary damages, on the other hand, are granted when an aggravating circumstance, which is not offset by a mitigating circumstance, attended the commission of the crime. In several cases, the relationship between the appellant and the rape victim justifies the award of exemplary damages, as in [34] this case.

Second Issue: Modification of Penalties One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion for Reconsideration seeking the imposition of the death penalty on appellant for the two cases of consummated rape andreclusion temporal for the attempted rape, in accordance with Section 11 of RA 7659. The prosecution argued that the Motion would not place appellant in double jeopardy, because [35] what is sought is just the imposition of the proper penalty as provided by law. The trial court concurred with the prosecution and granted the Motion in the assailed Order, saying that the Motion was [36] unopposed and that there was no violation of appellants right against double jeopardy. We disagree. Conflicting decisions rendered over the years both allowing the prosecution to seek the reconsideration of a conviction and prohibiting it therefrom necessitate a review of the rule on the [37] modification of judgments of conviction. Early on, in People v. Ang Cho Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case for the purpose of increasing the penalty as sought by the government would place the accused in double jeopardy. This ruling was followed [38] [39] in People v. Pomeroy andPeople v. Ruiz. The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification or the [40] setting aside of the judgment before it became final or an appeal was perfected. Under this amendment, a judgment acquired finality and the trial court lost jurisdiction only in the following [41] cases: (1) after the 15-day period to appeal lapsed, (2) when the defendant voluntarily submitted to the [42] execution of judgment, (3) when the defendant perfected the appeal, (4) when the accused withdrew [43] the appeal, (5) when the accused expressly waived in writing the right to appeal, and (6) when the [44] accused filed a petition for probation. Under this amendment, the trial court had plenary power to alter or revise its judgment in accordance with the requirements of law and justice. In 1985, Section 7 of Rule 120 was amended to include the phrase upon motion of the accused effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking a modification of a [45] judgment of conviction. As amended, the provision was worded as follows: SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the accused has expressly waived in writing his right to appeal, or the accused has applied for probation. Under this Rule, a judgment of conviction, before it became final, could be modified or set aside [46] upon motion of the accused. It obviously aims to protect the accused from being put anew to defend himself from more serious offenses or penalties which the prosecution or the court may have overlooked in the original trial. It does not however bar him from seeking or receiving more favorable modifications. Significantly, the present Rules, as amended last year, retained the phrase upon motion of the accused, as follows:

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without the consent of the accused. We close this Decision with an exhortation to the defense counsel to be more circumspect in defending appellant and others similarly situated. Counsel should have immediately objected to the Motion for Reconsideration in the trial court. Because of this failure to take exception, the RTC judge meekly granted the relief prayed for and condemned the accused, inter alia, to two death sentences. Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all the members of the bench and the bar, to be more vigilant in protecting the rights of the accused -- especially those in jeopardy of the death penalty -- and to keep abreast of legal developments. Indeed, the learning process [47] in law never ceases. Utmost dedication to duty and excellence is expected of every lawyer. WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order is ANNULLED and SET ASIDE, while the assailed Decision is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages are increased to P50,000 and those for exemplary [48] damages to P25,000 for each consummated rape, pursuant to current jurisprudence.

G.R. No. 85215 July 7, 1989 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents. Nelson Lidua for private respondent.

NARVASA, J.: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed. Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of 1 plane tickets, the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' 2 Association (PALEA) to which Ramos pertained. On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten 3 notes reading as follows:

2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86. ( s ) F e l i p e R a m o s ( P r i n t e d ) F . R a m o s At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and

that he was willing to sign his statement (as he in fact afterwards did). How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In 5 that place and during that time, according to the indictment, he (Ramos) .. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. . On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 6 1988, which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' By Order dated August 9, 1988, the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission." The private prosecutors filed a motion for reconsideration. It was denied, by Order dated September 14, 10 1988. In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo,149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional
9 8 7

provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited." These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it. At the core of the controversy is Section 20, Article IV of the 1973 Constitution, to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely: 1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that 12 accorded by the Fifth Amendment of the American Constitution, and 2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are 13 now contained in Section 12 of the same Article III. Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in
11

any civil, criminal, or administrative proceeding. against himself"

14

The right is NOT to "be compelled to be a witness

The precept set out in that first sentence has a settled meaning. It prescribes an "option of refusal to 16 answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know 17 in advance the character or effect of a question to be put to the latter. The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right 18 may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. 19 20 Arizona, a decision described as an "earthquake in the world of law enforcement." Section 20 states that whenever any person is "under investigation for the commission of an offense"-1) he shall have the right to remain silent and to counsel, and to be informed of such 21 right, 2) nor force, violence, threat, intimidation, or any other means which vitiates the free will 22 shall be used against him; and 3) any confession obtained in violation of x x (these rights shall be inadmissible in 23 evidence. In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding 24 against the suspect.

15

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, 25 resulting in self-incriminating statement without full warnings of constitutional rights." The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation 26 of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise 27 deprived of his freedom of action in any significant way." The situation contemplated has also been 28 more precisely described by this Court." .. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the 29 commission of an offense," the statement is not protected. Thus, in one case, where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against selfincrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime. It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a 30 specific incriminatory question at the time that it is put to him. Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or 32 refusal to be a witness shall not in any manner prejudice or be used against him. The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, 33 or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He 34 can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically 35 states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any 36 matters stated in his direct examination, or connected therewith . He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal;
37 31

c) to testify in his own behalf, subject to cross-examination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the socalled "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating

consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect.

G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:p The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 1 86-48926 for Rebellion, and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial 3 Court of Manila, later amended in an Amended Information which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations
2

and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his 4 capture. A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for 5 private respondent and his co-accused was filed with this Court which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal 6 7 action or liability has been extinguished, to which petitioner filed an Opposition citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. In his Order of March 6, 1987, respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for 9 10 bail, which herein petitioner opposed in an Opposition filed on 27 May 1987 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored.
8

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty ofprision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex. In a motion to reconsider the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the
12 11

government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest, which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially 14 dangerous resident aliens pending deportation proceedings, and that an arrestee may be incarcerated 15 until trial as he presents a risk of flight; and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to 16 the community which no condition of release can dispel. On 30 July 1987 respondent Judge handed down the Order this decision the dispositive portion of which reads:
17 13

adverted to in the introductory portion of

WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58).

In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the 18 gravity of the pending charge, and the likelihood of flight. In Our resolution of 11 August 1987 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II
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RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent. 22 September 1987.
23 21

The reply was filed on 18

In Our resolution of 15 October 1987 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November and 23 November 1987 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private 26 respondent, which We granted in Our resolution of 19 November 1987 and 1 December 27 1987, respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the 28 issues raised in this petitions, which he complied with by filing his Manifestation on 30 May 29 1990 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail
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Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the 30 penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Section 3, Rule 114 of the Rules of Court, as amended, also provides: Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the 31 offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is 32 absolute. And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to 33 determining whether or not evidence of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption 34 thereof is great! Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable 35 time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua.

xxx xxx xxx This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and 36 the convict is serving the same. III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 8648926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ ofHabeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his codetainees Josefina Cruz and Jose Milo Concepcion will be released immediately.

Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee,C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during 37 the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and

possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for 38 admission to bail should be in the custody of the law or otherwise deprived of his liberty." When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his copetitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused 39 from imprisonment until his conviction and yet secure his appearance at the trial. It presupposes that 40 the person applying for it should be in the custody of the law or otherwise deprived of liberty. Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, is such waiver valid? Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or

such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an 41 act inconsistent with claiming it." As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute,or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitutionmay be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the 42 constitutional rights created to secure personal liberty are subjects of waiver. In Commonwealth vs. Petrillo,
43

it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action 44 which would be invalid if taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against 45 46 unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be 47 heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel. This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE.

BELTRAN VS. SAMSON [53 PHIL 570; G.R. NO. 32025; 23 SEPT 1929] Sunday, February 15, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: Beltran, as a defendant for the crime of Falsification, refused to write a sample of his handwriting as ordered by the respondent Judge. The petitioner in this case contended that such order would be a violation of his constitutional right against self-incrimination because such examination would give the prosecution evidence against him, which the latter should have gotten in the first place. He also argued that such an act will make him furnish evidence against himself.

Issue: Whether or not the writing from the fiscal's dictation by the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote certain documents supposed to be falsified, constitutes evidence against himself within the scope and meaning of the constitutional provision under examination.

Held: The court ordered the respondents and those under their orders desist and abstain absolutely and forever from compelling the petitioner to take down dictation in his handwriting for the purpose of submitting the latter for comparison. Writing is something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the present case is similar to that of producing documents or chattels in

one's possession. We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled

to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. It cannot be contended in the present case that if permission to obtain aspecimen of the petitioner's handwriting is not granted, the crime would go unpunished. Considering the circumstance that the petitioner is a municipal treasurer, it should not be a difficult matter for the fiscal to obtained genuine specimens of his handwriting. But even supposing it is impossible to

obtain specimen or specimens without resorting to the means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are accidental and do not constitute the raison d' etre of the privilege. This constitutional privilege exists for the protection of innocent persons.

[G.R. No. 109242. January 26, 1999]

LITO C. MARCELO, petitioner, vs. THE HON. SANDIGANBAYAN (First Division) and the PEOPLE OF THE PHILIPPINES, respondents. DECISION MENDOZA, J.: This is a petition for review on certiorari filed by Lito Marcelo from a decision of the Sandiganbayan [1] (First Division) convicting him and two others of qualified theft. The information against them alleges That on or about February 17, 1989, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused, ARNOLD PASICOLAN, a public officer, being then an Emergency Laborer assigned as bag opener at the printed matters section of Makati Central Post Office, and taking advantage of his official position by having access to the mail matters in conspiracy with accused RONNIE S. ROMERO and LITO MARCELO, both private individuals, did then and there wilfully, unlawfully and feloniously with grave abuse of confidence, and with intent of gain and without the consent of the owners thereof, take, steal and carry away from the Central Post office of Makati one bag containing assorted mail matters some of them containing U.S. Dollar Bills in the aggregate amount of $500, or its peso equivalent in the amount of P11,000.00, Philippine Currency, to the damage and prejudice of the different addressee (sic) or the government in the aforesaid mentioned (sic) amount. CONTRARY TO LAW.

The facts established during the trial show the following: On February 10, 1989, Jacinto Merete, a letter carrier in the Makati Central Post Office, disclosed to his chief, Projecto Tumagan, the existence of a group responsible for the pilferage of mail matter in the [2] post office. Among those mentioned by Merete were Arnold Pasicolan, an emergency laborer assigned as a bag opener in the Printed Matters Section, and Redentor Aguinaldo, a mail sorter of the Makati Post Office. Merete likewise described the modus operandi of the group. For this reason, Tumagan sought the aid of the National Bureau of Investigation (NBI) in apprehending the group responsible for mail pilferage in the Makati Post Office. On February 17, 1989, NBI Director Salvador Ranin dispatched NBI agents to Legaspi Village following a report that the group would stage a theft of mail matter on that day. Tumagan accompanied a team of NBI agents composed of Senior Agent Arles Vela and two other agents in a private car. They arrived at Legaspi Village at about 1:00 p.m. They stayed at the corner of Adelantado and Gamboa [3] Streets, while two other teams of NBI agents waited at Amorsolo Street, near the Esguerra Building. At 2:00 p.m., a postal delivery jeep, driven by one Henry Orindai, was parked in front of the Esguerra [4] Building on Adelantado Street. Esguerra Building is located between Adelantado and Amorsolo Streets. Adelantado and Amorsolo Streets are parallel to each other. The passengers of the postal [5] delivery jeep were Arnold Pasicolan, Jacinto Merete, and the driver, Henry Orindai. Pasicolan alighted from the jeep bringing with him a mail bag. Merete stayed inside the jeep. Pasicolan then passed [6] through an alley between Esguerra and Montepino Buildings going towards Amorsolo St. Montepino Building is adjacent to Esguerra Building. The two are separated by the alley. Upon reaching Amorsolo St., Pasicolan gave the mail bag to two persons, who were later identified as Ronnie Romero and petitioner Lito Marcelo. The latter transferred the contents of the mail bag (i.e., assorted mail matter) to a [7] travelling bag. The two then secured the bag to the back of their motorcycle. Meanwhile, the NBI team led by agent Vela, upon seeing Pasicolan going towards Amorsolo St., moved their car and started towards Amorsolo St. They were just in time to see Pasicolan handing over [8] the mail bag to Marcelo and Romero. At that point, Atty. Sacaguing and Arles Vela arrested the two accused. Unaware of the arrest of Romero and Marcelo, Pasicolan went back to the postal delivery jeep and proceeded toward Pasay Road. The NBI agents followed the postal delivery jeep, overtook it, and [9] arrested Pasicolan. The NBI agents brought Pasicolan, Marcelo, and Romero to their headquarters. They also brought along with them the motorcycle of Romero and Marcelo and the bag of unsorted mail found in their [10] possession. On their way to the NBI headquarters, they passed by the Makati Central Post Office, intending to arrest another suspect, Redentor Aguinaldo. However, they were not able to find him [11] there. The unsorted mail seized from Marcelo and Romero consisted of 622 letters. The names of the addressees were listed. They were subsequently notified by the Bureau of Posts to claim their letters. Many of them, after proper identification, were able to claim their letters. Some letters contained money. Romero, Marcelo, and Pasicolan were asked to affix their signatures on the envelopes of the letters. They did so in the presence of the members of the NBI Administrative and Investigative Staff and the people transacting business with the NBI at that time. According to Director Ranin, they required the [13] accused to do this in order to identify the letters as the very same letters confiscated from them. NBI Director Ranin allegedly saw US dollar bills in various denominations of 20, 50, and 100 [14] dollars. Vela and the other NBI agents stated in their affidavits that there were dollar bills in the letters which, if converted to Philippine pesos, at the then exchange rate of P22 to US $1, were [15] worth P11,000.00. The addressees agreed to leave the envelopes of the letters with the NBI. Those letters which were not claimed were opened in court in the presence of the counsel for the defense. The letters were found to contain three (3) one dollar bills, one (1) five dollar bill, one (1) twenty dollar bill, a [16] check for twenty-five dollars, and fifty (50) Saudi Arabian riyals.
[12]

Arnold Pasicolan, Ronnie Romero, and herein petitioner Lito Marcelo were charged with infidelity in the custody of documents. The case was later withdrawn and another information for qualified theft was filed before the Sandiganbayan. On March 8, 1993, the Sandiganbayan found all the accused guilty beyond reasonable doubt as principals of the crime of qualified theft. The dispositive portion of its decision reads: WHEREFORE, the Court finds the three accused, Arnold Pasicolan y Mabazza, Ronnie Romero y Santos, and Lito Mercado [should be Marcelo] y Cruz, guilty, as principals, beyond reasonable doubt of the crime of qualified theft defined in Article 310, in conjunction with Articles 308 and 309, of the Revised Penal Code. Accordingly, applying the Indeterminate Sentence Law and considering the aggravating circumstances of taking advantage of public position, the Court imposes upon Arnold Pasicolan y Mabazza the penalty ranging from EIGHT (8) years, EIGHT (8) months, and ONE (1) day of Prision mayor, as minimum, to THIRTEEN (13) YEARS, ONE (1) month, and ELEVEN (11) days of reclusion temporal, as maximum. Applying again the Indeterminate Sentence Law and there being no aggravating nor mitigating circumstances, the Court imposes upon Ronnie Romero y Santos and Lito Marcelo y Cruz, the penalty ranging from SEVEN (7) YEARS, four (4) months, and ONE (1) day of prision mayor, as minimum, to eleven (11) years, SIX (6) months, and TWENTY-ONE (21) days of prision mayor, as maximum. Hence, the instant petition for review on certiorari based on the following assignment of errors: (1) Respondent Honorable Court had wrongly made the crucial finding against petitioner that he has committed the act charged in conspiracy with each other. (2) Respondent Honorable Court erred in admitting as evidence of petitioners guilt the letters signed by the accused during custodial investigation without the assistance of counsel, in utter disregard of his constitutional right. First. Petitioner says that since the subject of the alleged pilferage was mail matter, only a government employee may be held guilty of qualified theft unless a private individual was shown to have been in conspiracy with him. He contends that since he is not a government employee, then he cannot be charged or held guilty of the crime as there is no proof that he conspired with a postal employee. The petitioner argues that there is no evidence to prove that he was at any time in conspiracy with the members of the syndicate inside the post office. In fact, petitioner points out, Jacinto Merete, Projecto Tumagan, and his co-accused Arnold Pasicolan were one in saying that it was their first time to see him and Romero on February 17, 1989. Likewise, in the meeting allegedly conducted by the members of the syndicate, he and Romero were not around nor were their names mentioned. Petitioner says that although he and Romero knew each other, it was only on February 17, 1989 that they saw each other again in order to see a movie. We cannot understand petitioners theory that, as the subject of the pilferage was mail matter, only a government employee, presumably of the postal service, can be held liable of qualified theft. What makes the theft of mail matter qualified is the fact that the subject thereof is mail matter, regardless of whether the offender is a postal employee or a private individual. This much is clear from Art. 310 of the Revised Penal Code which provides: Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. Thus, as long as the thing stolen is one of those enumerated in Art. 310, the crime is qualified theft. In this case, it is mail matter. Hence, it is not necessary that petitioner be shown to have been in conspiracy with a government employee in order to hold him liable for qualified theft.

Be that as it may, conspiracy was proven in this case. NBI agent Arles Vela testified that petitioner was instrumental in transferring the contents of the mail bag which Pasicolan handed to them to their travelling bag and that afterward petitioner and his co-accused Romero tied the bag to their motorcycle. Velas testimony was corroborated by Projecto Tumagan, who likewise testified that Romero and Marcelo transferred the contents of the mail bag to their bags. Although Tumagan said petitioner and Romero had two bags, thus contradicting Velas testimony that petitioner and his co -accused had only one bag, the inconsistency in the testimonies of these two prosecution witnesses is not really of much importance. What is important is that Tumagan corroborated Velas testimony that petitioner helped in putting the letters in their bag. The discrepancy could be due to the fact that these two witnesses were inside a car and were at some distance from the persons they were observing. At any rate, during the cross-examination, Tumagan said that the contents of the mail bag were transferred to one other bag [17] implying that there was really just one bag involved. Moreover, the defense should have confronted Tumagan with this inconsistency and asked him to explain. For its failure to do so, the defense cannot for the first time raise the point in this appeal. Petitioner Marcelo showed no sign of surprise or hesitation when Pasicolan handed the mail bag to him and Romero. It was apparent he was acting pursuant to a prior agreement because when the mail bag was given to him, he got the bag and he and Romero then transferred its contents to their travelling bag. Petitioner acted in concert with Pasicolan and Romero, thus indicating he was in conspiracy with them. As the Sandiganbayan said: The accused appear to have committed the acts charged in conspiracy with each other pursuant to a preconceived plan known to all of them to attain a common goal. Thus, when the postal delivery jeep stopped near Esguerra Building along Adelantado Street, Pasicolan alighted bringing with him a mail bag, passed through an alley beside Esquerra Building, and upon reaching Amorsolo Street handed over the mail bag to Romero and Marcelo who were waiting for him. Upon receiving the mail bag they quickly opened it and transferred its contents to a bag which Aguinaldo provided for the purpose. No words were exchanged between Pasicolan, on the other hand, and Romero and Marcelo, on the other, in effecting the delivery. Pasicolan did not ask if Romero and/or Marcelo were the person or persons sent to receive the mail bag. These facts indicate that the three accused already knew each other and were fully aware of what each had to do. And when Romero and Marcelo were arrested for receiving the mail bag, they said nothing to the NBI. Not even a whimper of protest was heard from them. They appear resigned to their fate after having been caught red-handed. Petitioner Marcelo claimed that he and Romero met on February 17, 1989 in order to see a movie; that when Pasicolan handed four envelopes to Romero, he was across the street buying cigarettes; and that when he joined Romero, a person identifying himself as an NBI agent arrested them. Marcelo [18] testified: ATTY. CRUZ Q A So you were asked by Ronnie Romero if you will be reporting for work at that time? Yes, sir.

JUSTICE HERMOSISIMA Q A What time was this when you were asked by Ronnie Romero? 1:00 oclock in the afternoon.

ATTY. CRUZ Q A Q What was the reason why you were asked by Ronnie Romero? He wanted me to go with him to see a movie. Did he tell you at what place you will see a movie?

A Q A .... Q A

No, sir. What was your reply? I told him yes, I will go with you, anyway I have to go to my work at 10:00 oclock in the evening.

What happened next Mr. Marcelo? Then I rode at the back of his motorcycle and we went straight to Makati. Suddenly we stopped near a building and I asked him what we will do there and he told me he was going to wait for somebody there.

.... ATTY. CRUZ Q What was told to you when you reached there?

WITNESS A Q A .... Q A And what happened next? While we were there I told Ronnie Romero I had to buy cigarette from across the street and after a while, about half an hour, Ronnie called me I saw somebody handing him about four pieces of envelopes. How would you describe that envelope? It was like the Manila envelope that we see being used by the elementary grades. Was there any distinguishing mark in this envelope? No, sir. Were you able to see what was the contents of these envelopes? No, sir. That person who handed the envelope to Ronnie, do you know him? I do not know him. While that envelope was being handed to Ronnie, you mean to say you were across the street? Yes, sir. And so you crossed the street to reach Ronnie? Yes, sir. When you crossed the street was the envelope still being handed or already handed to Ronnie? It was already handed to him. What happened next? He told me he had to wait for somebody there and I told him to hurry up, I thought you said we are going to see a movie, and he said, this will not take long. While at Taguig, were you informed by Ronnie Romero that you will be waiting for somebody when you reached Makati? No, sir.

Q A Q A Q A Q A Q A Q A Q A Q

After I crossed the street somebody shouted at us identifying himself as NBI, WE are from the NBI, do not move.

The foregoing testimony is contrary to the testimony of Ronnie Romero. Romero said that Redentor Aguinaldo, a mail sorter, had asked him to meet a person in Makati who would give him an envelope to be delivered to an unidentified person at the BF Homes Subdivision in Paraaque. Romeros version is [19] as follows: ATTY. I. CRUZ: Q And do you know a certain person by the name of Redentor Aguinaldo?

JUSTICE HERMOSISIMA: Q The accusation against you is that you conspired with your co-accused Arnold Pasicolan and Lito Marcelo in stealing the articles and things stated in the Information. Why do you say that you are not part of the conspiracy, what do you mean by that statement? Because, sir, I do not know what was the contents of the envelope.

You can proceed now. ATTY. I. CRUZ: Q A Q .... A No, sir. You mentioned of an envelope which you claim not to have known the contents of the same. Who gave you the envelope? Arnold Pasicolan. Do you know Arnold Pasicolan prior to and/or before February 17, 1989?

ATTY. I. CRUZ: Q A Q A Q When for the first time did you come to know Arnold Pasicolan? On February 17, sir. When, where specifically did you come to know him? At the NBI office, sir. Now...

JUSTICE HERMOSISIMA: Q A February 17, 1989? Yes, Your Honor.

Proceed. .... ATTY. I. CRUZ: Q A Do you know a certain Redentor Aguinaldo? Yes, sir.

JUSTICE HERMOSISIMA: Q Tell us the circumstances under which you received this envelope?

A Q A

I received that envelope given to me by Arnold Pasicolan. If you answer in monosyllable we will not understand. Alright, you tell your story? Redentor Aguinaldo on February 17 told me that he is going to give me a job. What I will do is get the envelope and bring it to a certain subdivision in Las Pias and somebody will pick it up and pay me P100.00 for it.

Proceed. ATTY. I. CRUZ: Q A Q Now, do you know the person to whom you are to deliver the envelope? No, sir. Now, if you do now know the person to whom you will deliver the envelope. JUSTICE HERMOSISIMA:

You may not cross-examine, tell him to tell us facts. ATTY. I. CRUZ: Q A Where specifically in the subdivision in Paraaque where you will deliver the envelope? BF Homes.

JUSTICE HERMOSISIMA: Q A Q To what particular person will you supposed to deliver it? I was just asked to go to that place and somebody will approach me. To make your story more believable, BF Homes in Paraaque is a very big subdivision. You enter that subdivision and there will be several persons whom you can see there. How will the person know that you are carrying an envelope for him. Where were you supposed to deliver it. If you cannot explain that, we will not believe you? In that subdivision, there is a vacant place where there are no houses. It is where I often go. BF Homes subdivision in Paraaque has several vacant lots, how will you know what vacant lot to proceed to? It was pointed to me by Aguinaldo. So, Aguinaldo went with you in the morning of that same day and pointed to you the place? In the morning of that same day and he pointed to me the place.

A Q A Q A

Second. The petitioner contends that the Sandiganbayan erred in admitting in evidence the letters signed by him because he was asked to sign them during custodial investigation without the assistance of counsel. The following provisions of the Constitution are invoked by petitioner: Article III, 12(1). - Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. .... (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

17. No person shall be compelled to be a witness against himself. Petitioners counsel says that the signing of petitioners and his co -accuseds names was not a mere mechanical act but one which required the use of intelligence and therefore constitutes self[20] incrimination. Petitioners counsel presumably has in mind the ruling in Beltran v. Samson to the effect that the prohibition against compelling a man to be a witness against himself extends to any attempt to compel the accused to furnish a specimen of his handwriting for the purpose of comparing it with the handwriting in a document in a prosecution for falsification. Writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical act because it requires the application [21] of intelligence and attention, so it was held. To be sure, the use of specimen handwriting in Beltran is different from the use of petitioners signature in this case. In that case, the purpose was to show that the specimen handwriting matched the handwriting in the document alleged to have been falsified and thereby show that the accused was the author of the crime (falsification) while in this case the purpose for securing the signature of petitioner on the envelopes was merely to authenticate the envelopes as the ones seized from him and Ronnie Romero. However, this purpose and petitioners signatures on the envelope, when coupled with the testimony of prosecution witnesses that the envelopes seized from petitioner were those given to him and Romero, undoubtedly help establish the guilt of petitioner. Since these signatures are actually evidence of admission obtained from petitioner and his co-accused under circumstances contemplated in Art. III, 12(1) and 17 of the Constitution, they should be excluded. For indeed, petitioner and his co-accused signed following their arrest. Hence, they were at the time under custodial investigation, defined as questioning initiated by law enforcement officers after a person has been taken into custody or [22] otherwise deprived of his freedom of action in a significant way. Under the Constitution, among the rights of a person under custodial investigation is the right to have competent and independent counsel preferably of his own choice and if the person cannot afford the services of counsel, that he must be provided with one. However, the letters are themselves not inadmissible in evidence. The letters were validly seized from petitioner and Romero as an incident of a valid arrest. A ru ling that petitioners admission that the letters in question were those seized from him and his companion on February 17, 1989 is inadmissible in evidence does not extend to the exclusion from evidence of the letters themselves. The letters can stand on their own, being the fruits of a crime validly seized during a lawful arrest. That these letters were the ones found in the possession of petitioner and his companion and seized from them was shown by the testimonies of Vela and Tumagan. Indeed, petitioner and his co-accused were not convicted solely on the basis of the signatures found on the letters but on other evidence, notably the testimonies of NBI agents and other prosecution witnesses. WHEREFORE, the decision of the Sandiganbayan is AFFIRMED.

[G.R. No. 113684. January 25, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO GALLARDO y GANDER, ALFREDO * COLUMNA y CORREA, and JESSIE MICATE y ORTEZA, accused-appellants. ALEX DECISION PARDO, J.:

The Constitution enumerates the basic rights of a person under investigation. "Sec. 12(1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except [1] in writing and in the presence of counsel." xxx The case before the Court is an appeal by accused-appellants from the decision of the trial court finding them guilty of murder for the treacherous killing of Edmundo Orizal and sentencing each of them to reclusion perpetua and to pay in solidum the heirs of Edmundo Orizal in the sum of P50,000.00 as indemnity for death and P150,000.00 as moral damages. Missc On November 7, 1991, on the basis of the sworn confessions of the accused, the Provincial Prosecutor of Cagayan filed with the Regional Trial Court, Tuguegarao, Cagayan an information charging the accused with murder, committed as follows: "That on or about July 28, 1991, in the municipality of Tuguegarao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Armando Gallardo y Gander, Alfredo Columna y Correa and Jessie Micate, armed with guns, confederating and conspiring together and helping one another with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Edmundo Orizal, inflicting upon him several gunshot wounds on the different parts of his body which caused his death. "Contrary to law." "Tuguegarao, Cagayan, November 7, 1991. "(Sgd.) ALEJANDRO A. PULIDO, NPS III "Provincial Prosecutor"
[3] [2]

Misspped
[4]

On December 2, 1991, all three accused entered a plea of not guilty. The prosecutions evidence established the following facts:

Trial ensued.

On July 28, 1991, the lifeless body of Edmundo Orizal was found in the rest house of Ronnie Balao in Balzain, Tuguegarao, Cagayan. In an autopsy performed by Dr. Edmundo Borja, Tuguegarao Municipal Health Officer, the victim was found to have sustained seven (7) gunshot wounds in the chest, abdomen, [5] back, left and right thighs, and two (2) grazing wounds on the left arm and back. Investigation by the Tuguegarao police station identified the suspects in the murder of Edmundo Orizal as Armando Gallardo y Gander, Alfredo Columna y Correa, and Jessie Micate y Orteza. The police received information that the suspects were detained at the Camalaniugan Police Station because of other criminal charges. So elements of the Tuguegarao police went to the Camalaniugan Police Station in August 1991 to fetch the suspects. Only Armando Gallardo and Alfredo Columna alias Fermin were in the custody of the Camalaniugan Police Station. Spped

The two suspects Armando Gallardo and Alfredo Columna were brought to the Tuguegarao Police Department. On August 18, 1991, they were investigated by Police Investigator SPO4 Isidro Marcos, and they gave statements admitting that they, together with Jessie Micate, killed Edmundo Orizal. During the investigation, the dialect used was Ilocano, the native tongue of the accused, and during the taking of the statements, Atty. Rolando Velasco assisted them. Judge Vilma Pauig was present. She administered the oath on the jurat of the statements. Accused-appellants signed their statements admitting the killing of Edmundo Orizal. According to accused-appellants, they planned and executed the killing of Edmundo Orizal, as follows: Jospped At about 10:00 in the morning of July 26, 1991, Pat. Dennis Molina, accused-appellants Armando Gallardo and Alfredo Columna, together with Jessie Micate and Asoy (Nelson) Hidalgo, met at the house of Alfredo Columna in Ziminilla (Camalaniugan, Cagayan). Pat. Molina conveyed to the group the desire of Congressman Domingo Tuzon that Edmundo Orizal be killed because the latter was planning to ambush him and grab his land. Edmundo Orizal was a strong campaigner and a bodyguard of retired Gen. Prospero Olivas, who was running for mayor of Camalaniugan (against the congressmans re electionist wife). Pat. Molina told the group that if they accepted the job and succeeded in their mission, Congressman Tuzon would work for their acquittal in all their criminal cases, and would give cash rewards. The accused-appellants accepted the job and the following day, on July 27, 1991, they, together with Jessie Micate, Asoy Hidalgo and Pat. Molina, set out to accomplish their mission. Pat. Molina accompanied them to Dugo, Camalaniugan at Where Else Beauty Salon where Pat. Molina showed them their weapons: a .38 cal. and .45 cal. handguns and a folded carbine, placed inside a box. Sppedjo At around 2:00 in the afternoon of the same day, in the house of Dadoy Micate, Pat. Molina gave the .38 cal. revolver to Armando Gallardo, the .45 cal. pistol to Alfredo Columna, and the folded carbine to Jessie Micate. Then, Pat. Molina instructed the three accused to look for Edmundo Orizal and kill him. The three boarded a tricycle and proceeded to Edmundo Orizals boarding house at Caritan, Tuguegarao, Cagayan. Edmundo was not there. He was at that time in the house of Aping in Lecaros Street, Centro, Tuguegarao. The three went to that place. At the place of Aping, accused Gallardo engaged Edmundo in a conversation while all of them drank San Miguel beer. In the course of their conversation, and probably to get the trust of Edmundo Orizal, accused Gallardo told him that he had already killed Inyong Orteza, whom Edmundo Orizal wanted dead. At around 5:00 p. m., the group moved over to the rest house of Ronnie Balao in Balzain, Tuguegarao. Edmundo ordered Armando Gallardo to get his M-14 armalite rifle from Ronnie Balao. However, Ronnie Balao did not give the firearm, but went with Armando to the rest house to talk to Edmundo. After talking to Edmundo and Armando, Ronnie Balao went home. Miso Meanwhile, Edmundo Orizal, the two accused-appellants and Jessie Micate were conversing. Edmundo was convincing accused-appellants and Jessie Micate to join him as bodyguards of Gen. Olivas during the election campaign. At this point, Jessie Micate leveled his carbine at Edmundo and successively fired at him. Alfredo Columna drew his .45 cal. pistol and shot Edmundo Orizal five times. This was followed by Armando Gallardo who shot Edmundo once with his .38 cal. revolver. The three accused fled, and went to the house of Dadoy Micate in Caggay (Tuguegarao, Cagayan), where Pat. Molina was waiting for them. They informed Pat. Molina that the mission was accomplished. Early the next morning, July 28, 1991, the three accused and Pat. Molina boarded a Manny Trans bus and proceeded to Camalaniugan. They stopped at Dugo, Camalaniugan and proceeded to the house of Congressman Tuzon to report the killing.

Congressman Tuzon was out of his house attending the town fiesta of Buguey (Cagayan). When he arrived, Pat. Molina informed him that Edmundo Orizal is dead. Congressman Tuzon was very happy and promised them that he would work for their acquittal in their pending cases and after confirming the death [6] of Orizal he would give them their cash rewards. Nelson Hidalgo, a friend of Manuel Columna, Jr., testified that on July 26, 1991 at around 4:30 in the afternoon at the house of Manuel Columna, Jr., he was asked by the accused to join them in their mission to kill Edmundo Orizal. In that meeting, Nelson Hidalgo resolved to join the group, but while on his way home from the meeting, he met his bosom friend Reynald Micate. He told the latter about their plan to kill Edmundo Orizal. Reynald Micate advised him not to participate in the killing for it would just add to his other criminal cases. Nelson Hidalgo heeded the advice of his bosom friend. Consequently, realizing that because of his knowledge of the plan to kill Edmundo Orizal, he would be a target for elimination so that the plan would not be revealed to anyone, he left Camalaniugan, and went to Buguey, then Aparri and finally, to Manila. It was only after three months that he returned to Camalaniugan and learned that Edmundo Orizal was killed. Nexold On August 18, 1993, accused on their part filed with the trial court a demurrer to evidence, arguing that the prosecution failed to establish that the signed statements of the accused were procured in violation of Article III Section 12 (1) of the Constitution. On September 10, 1993, the trial court denied the demurrer and stated that the court would want to know controverting evidence that the defense may give to intelligently decide the issues of the case. Accused Armando Gallardo and Alfredo Columna testified in their defense. They gave a common version. In the words of the trial court, here is what they alleged: Manikx "On August 18, 1991, elements of the Tuguegarao Police Station went to Camalaniugan to fetch accused Armando Gallardo and Alfredo Columna who were detained at the Camalaniugan Municipal Jail in connection with other criminal cases. These two accused were brought to the Tuguegarao Police Station to be questioned on the killing of Edmundo Orizal. "Arriving in Tuguegarao the same day, Investigator Isidro Marco investigated said accused and took their statements at the Tuguegarao Police Station. The investigator, however, did not inform them of their constitutional rights. "After the respective statements had been typewritten, investigator Marcos neither read to nor allowed them to read the contents of their alleged statements. The investigator just told them to sign their socalled statements. Accused Gallardo signed the confessional statement because he was harmed by Marcos while accused Alfredo Columna said that he signed said document because he was afraid he [7] might be harmed." Maniks On November 29, 1993, the trial court rendered decision finding accused Armando Gallardo y Gander and Alfredo Columna y Correa guilty beyond reasonable doubt of murder qualified by evident premeditation and aggravated by treachery and sentencing each of them to reclusion perpetua and to pay in solidum the heirs of Edmundo Orizal P50,000.00 as the mandatory indemnity for death and P150,000.00 as moral damages. The court acquitted accused Jessie Micate y Ortega for lack of [8] evidence. Hence, this appeal. Accused-appellants Armando Gallardo y Gander and Alfredo Columna y Correa impute the following errors to the trial court:

1. In admitting their extra-judicial confessions in evidence against them; and 2. In finding that their guilt was proved beyond reasonable doubt.
[9]

Manikan

The appeal has no merit. The extra-judicial confessions of the accused were given after they were completely and clearly apprised of their Constitutional rights. A lawyer assisted them and a judge administered their oath. In his testimony, Atty. Rolando Velasco stated: "Q. After you were introduced to the two suspects what happened? "A. I interrogated first Gallardo and I told him whether he can understand tagalog and he said he can understand and I told him if he is willing to voluntarily give his statement to the police and he said "yes", and I said he has the right to give his statement and if he is going to give his statement his statement can be used against him in court and if he wants to get the services of a lawyer of his own choice or if he wants me to assist him and he readily accepted. Supr-ema The same was done with accused Alfredo Columna. "Q. How did you represent them in the investigation? "A. I was present and I made sure that there was no force and intimidation made on the person of these two suspects by the police and the police who asked questions in Ilokano and the answer was in Ilocano by the suspects. "Q. In so representing them in that investigation were you requested to sign the document? "A. I voluntarily signed, sir.
[10]

Judge Aquino of the Regional Trial Court, Tuguegarao, Cagayan, asked Atty. Velasco several questions particularly on the point of how the accused-appellants were informed of their Constitutional rights. He stated: Scs-daad "Q. When you conferred with the accused before taking of their sworn statement you stated that you asked them whether they were forced or intimidated in making the statement? "A. Yes, sir. "Q. Did you happen to know the status of the accused at the time their statements were taken whether they are detention prisoners or not? "A. There was no warrant of arrest issued they were just apprehended as suspects. "Q. Please tell the court, did they complain to you about any harassment of any kind by the police at the time of their investigation? "A. None, your honor. S-daad "Q. You said you accompanied them, you were present when the oath was administered by Judge Pauig?

"A. Yes, the following day I was also called by the police to be present when the accused took their oath before Judge Pauig. "Q. You said you advised the accused before taking their sworn statement of their constitutional rights in Tagalog, why do you say that they understand Tagalog? "A. Because they were answering in Tagalog, also, sir. "Q. How was their Tagalog? "A. Good Tagalog, sir. Sd-aamiso "Q. Will you please tell in Tagalog the information the constitutional right of the accused? "A. I told them "May karapatan kayong hindi magbigay ng salaysay sa pulis, may karapatan kayong magkaroon ng abogado na sarili ninyo kung magbigay kayo." We have held that "while the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the formers appointment during the course of the investigation and the accused [11] thereafter subscribes to the veracity of his statement before the swearing officer." Scnc-m In the case at bar, although Atty. Velasco was provided by the State and not by the accused themselves, the accused were given an opportunity whether to accept or not to accept him as their lawyer. They were asked and they immediately agreed to have Atty. Velasco as their counsel during the investigation. There is no requirement in the Constitution that the lawyer of an accused during custodial investigation be previously known to them. The Constitution provides that the counsel be a competent and independent counsel, who will represent the accused and protect their Constitutionally guaranteed rights. Also, we have held that "to be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. The counsel, however, should [12] never prevent an accused from freely and voluntarily telling the truth." Nc-mmis We are, therefore, convinced that Atty. Velasco acted properly in accordance with the dictates of the Constitution and informed the accused of their Constitutional rights. Atty. Velasco assisted the accused and made sure that the statements given by the accused were voluntary on their part, and that no force or intimidation was used by the investigating officers to extract a confession from them. Aside from Atty. Velasco, Judge Vilma Pauig also testified that when she administered the oath to the accused-appellants, she asked them whether they understood the contents of their statements and whether they were forced by the police investigators to make such statements. Accused-appellants answered in the negative. From the foregoing, it can therefore be established that accused-appellants [13] were properly apprised of their rights and there was no violation of their Constitutional rights. Under rules laid by the Constitution, existing laws and jurisprudence, a confession to be admissible must satisfy all four fundamental requirements, namely: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession [14] must be express; and (4) the confession must be in writing. All these requirements were complied with. Nc-m

It would have been different if the accused were merely asked if they were waiving their Constitutional rights without any explanation from the assisting counsel. In this case, Atty. Velasco asked the accused if they were aware of their rights and the lawyer informed them of their rights and asked them if they were giving their statements willingly after being informed of their rights. This is in compliance with the constitutional guarantee of the rights of an accused during custodial investigation. There is no merit to the contention that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. The testimony of prosecution witness Nelson Hidalgo remains uncontroverted. The defense was unable to produce any evidence to prove that Nelson Hidalgo was biased and not credible. Ol-dmiso Well-entrenched in this jurisdiction is the rule that "the Court will n ot interfere with the trial courts assessment of the credibility of witnesses absent any indication or showing that the trial court overlooked [15] some material facts or gravely abused its discretion." Consequently, the trial court correctly found accused-appellants Alfredo Columna y Gander and Armando Gallardo y Correa guilty beyond reasonable doubt of the treacherous murder of Edmundo Orizal. We are however concerned with the statements of the accused that it was Congressman Tuzon who masterminded the killing of Edmundo Orizal. The order of inquest Judge Dominador L. Garcia dropping Congressman Tuzon and Pat. Molina from the criminal complaint for the reason that the confessions of the accused Gallardo and Columna were inadmissible against them under the res inter alios acta rule do not persuade us that former Congressman Tuzon and Pat. Molina were not liable as co-principals in the crime committed. Man-ikan Concededly, the extra-judicial confessions of the accused Gallardo and Columna are not admissible against Congressman Tuzon and Pat. Molina. However, the interlocking confessions of the accused are confirmatory evidence of the possible involvement of former Congressman Tuzon and Pat. Molina in the [16] crime. Consequently, we refer the case to the Department of Justice for investigation of the involvement of former Congressman Tuzon and Pat. Molina in the killing of Edmundo Orizal. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. However, the award of moral damages is reduced to P50,000.00. Manik-s Let a copy of this decision be furnished to the Honorable, the Secretary of Justice, Department of Justice, Manila, for inquiry into the involvement of other persons in the crime. With costs.

[G.R. No. 128360. March 2, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGAR CRISPIN, accused-appellant. DECISION GONZAGA_REYES, J.:

Appeal from a decision of the Regional Trial Court of Palawan, Branch 52, finding accused-appellant Edgar Crispin guilty of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering him to pay to the heirs of the victim civil indemnity of P50,000.00, actual damages of P80,000.00, and moral damages of P30,000.00. The Information reads: The undersigned hereby accuses FELIPE CRISPIN, EDGAR CRISPIN, EDMUND LOSIS, HENRY LOSIS and PAQUITO GOMEZ, of the crime of "MURDER" as defined and penalized under Article 248 of the Revised Penal Code, as amended, committed as follows: That on or about the 4th day of May, 1994, at Sitio Little Caramay, Barangay Magara, Municipality of Roxas, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating together and mutually helping one another with evident premeditation and treachery, while armed with bladed weapons and with intent to kill, and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack, assault and stab one MIGUEL BADENAS, hitting him on various vital parts of his body inflicting upon him multiple injuries, to wit: xxx which were the direct and immediate cause of the instantaneous death of said Miguel Badenas and thereafter the above-named accused threw the body of said Miguel Badenas into the river. CONTRARY TO LAW.
[2]

[1]

Of the five accused, only accused-appellant was arrested, arraigned and put to trial. The evidence for the prosecution discloses that at about 8 oclock in the evening of May 4, 1994, the five accused converged at the house of one Danilo de Asis in Sitio Little Caramay, Magara, Roxas, Palawan for a drink. At about 9 oclock in the evening, Cesar Delima and the victim joined them. Cesar Delima left after an hour, claiming he was sleepy, and the others continued their drinking until midnight, when Danilo de Asis asked them to leave as it was already late in the evening. The group had consumed five bottles of beer. Honorio Cabailo testified to witnessing the attack on Miguel Badenas. Cabailo stated that at the time in question, he was active in the campaign for the forthcoming barangay elections, and had just left the house of Ramon Balmonte in Sitio Caramay, for Sitio Capalad, also in Barrio Magara, to meet his fellow election campaigners. As he was walking towards Sitio Capalad, and from a distance of about five meters, he recognized Edgar Crispin and his cousin Felipe Crispin as well as the victim, all being his barriomates in Magara, Roxas, Palawan. Cabailo further testified that while herein accused-appellant Edgar Crispin and Felipe Crispin stabbed Badenas, three other men whom he failed to identify blocked [3] the way of the victim to prevent the latter from escaping. Overcome with fear for what he saw, Cabailo proceeded to Sitio Capalad and did not learn about the death of Miguel Badenas until three days after, when a relative of Badenas told him that Badenas died of stab wounds. The body of Miguel Badenas was interred immediately and without post-mortem examination after it was fished out of the river of Little Caramay, as it was already in a state of decomposition. About a month later, upon the request of Police Officer Joseph Carbonel, Chief of Police of Roxas, Palawan, the body

was exhumed and examined on May 28, 1994 by Dr. Leo Salvino. The exhumation report following findings:

[4]

bore the

1. Stab wound, 0.5 cm. penetrating the sternal area, entire anterior chest wall hitting the cardiac ventricle through and through; 2. Stab wound, 0.5 cm. penetrating mid-clavicular area; 3. Stab wound, mid-clavicular area; 4. Stab wound, 0.6 cm. penetrating mid-clavicular area; 5. Stab wound, penetrating mid-axillary area, 2.5 cm.; 6. Stab wound, 2.5 cm., penetrating mid-axillary; Back stab wound, 2.5 cm., penetrating paravertebral area; and Abdomen stab wound, penetrating the entire abdominal cavity, upper quadrant PROBABLE CAUSE OF DEATH: Cardiac Tamponade, Massive Hemo-pnemothorax Testifying on the exhumation report, Dr. Salvino declared that he found at least nine stab wounds on the deceaseds body, eight of which penetrated the body cavities. Based on the sizes of the wounds, he opined that it is likely that more than one person, using different kinds of sharp bladed instruments, have caused the injuries. Danilo de Asis, the owner of the house where the five accused and the victim spent the night drinking, testified that the group left his house at about 12 oclock in the early morning of May 5, 1994. He went to sleep as soon as the group left, and did not learn of the death of Miguel Badenas until four days later, [5] when the body was fished out of the river. For his part, accused-appellant interposed the defenses of denial and alibi. He testified that while he knew his four co-accused, he was not with them on the evening in question since he was at the residence of his brother-in-law, Rogelio Gorada, also in Sitio Little Caramay, Magara, Roxas, Palawan. Accusedappellant stated that he and his friend, Nolito Bacaltos, arrived at Goradas house at about 7:30 in the evening of May 4, 1994, shortly after which they began drinking beer. At about 8 oclock in the evening, they finished drinking and ate supper. Then he and Bacaltos spent the night in Goradas house, and left for their respective homes at around 6:30 the next morning. He claimed no knowledge of what happened to Miguel Badenas on the early morning of May 5, 1994, and came to learn of the latters death on May 7, [6] 1994 only. Nolito Bacaltos testified in support of accused-appellants story. Bacaltoss elder sister, Editha, is married to Teodoro Crispin, an elder brother of accused-appellant. He corroborated the testimony of accusedappellant that they were together on the evening of May 4, 1994 at the house of Rogelio Gorada, spent [7] the night there, and went home at about 7 oclock the following morning. Finally, the defense presented Ramon Balmonte, the owner of the house where Honorio Cabailo was said to have come from on the night that he witnessed the killing. Balmonte, who at the time he testified was a [8] member of the Sangguniang Barangay of Magara, said that he could not remember if Cabailo slept at [9] his house sometime on the first week of May 1994, as he was always out of his house.

The trial court rejected the denial and alibi of accused-appellant and convicted him of murder. While it held the circumstances of evident premeditation and treachery unsubstantiated by the evidence, it found the killing to be qualified to murder by the attendance of abuse of superior strength. It also ruled out the generic aggravating circumstance of nighttime, there being no evidence to show that the accused purposely sought nighttime to facilitate the commission of the offense. Thus, the dispositive portion of the questioned Decision reads: WHEREFORE, premises considered, judgment is hereby rendered finding the coaccused EDGAR CRISPIN guilty beyond reasonable doubt as co-principal of the crime of murder, and there being no modifying circumstances appreciated, and pursuant to Article 248 of the Revised Penal Code, as amended by R.A. 7659, in relation to Article 63(2) of the same Code, and not being entitled to the benefits of the Indeterminate Sentence Law, he is hereby sentenced to reclusion perpetua, with the accessory penalties of civil interdiction for life and of perpetual absolute disqualification; to pay the heirs of Miguel Badenas for the death of the latter, a. b. c. d. Civil Indemnity ... P 50,000.00 Funeral Expenses and Wake 20,000.00 Lost Income for his Family . 60,000.00 Moral Damages .. 30,000.00

____________ TOTAL and the costs. xxx SO ORDERED.

[10]

P160,000.00

On appeal, accused-appellant raises the following assignments of error: 1. The lower court erred in convicting accused-appellant of murder qualified by abuse of superior strength, when said qualifying circumstance is not alleged in the Information. 2. The lower court erred in convicting accused-appellant despite the absence of proof beyond reasonable doubt. In support of the first assignment of error, accused-appellant cited the Constitution and decided [12] cases which held that an aggravating circumstance not alleged in the Information but proven in trial cannot qualify a crime but should only be treated as a generic aggravating circumstance. Hence, assuming the correctness of the finding of abuse of superior strength, accused-appellant should not be convicted of murder, but only homicide. As regards the second assignment of error, accused-appellant contests the trial courts reliance on the testimony of eyewitness Honorio Cabailo, especially on Cabailos claim that he recognized accused appellant on a dark moonless night, by mere starlight. He pointed out that even the trial court
[11]

acknowledged that it is likely for Cabailos identification of the perpetrators to have been inaccurate since [13] starlight, by itself, could not have provided him with sufficient illumination. Accused-appellant also assails the trial courts extensive reference to the sworn statement of Cesar Delima, taken by the police of Roxas, Palawan, who also claimed to witness the five accused attack and [14] kill Miguel Badenas. While Cesar Delima was named in the Information as one of the principal [15] witnesses, he did not appear when subpoenaed to testify. Accused-appellant decries the fact that the trial court gave credence to the allegations of the sworn statement despite the prosecutions failure to present Delima as a witness, thus depriving the accused of his right to cross-examine him. He further contends that the sworn statement could not have been validly considered by the trial court, it not having been formally offered in evidence by the prosecution. Without the affidavit of Cesar Delima, and considering the weakness of the testimony of purported eyewitness Honorio Cabailo, accused-appellant argues that the trial court had insufficient bases to find him guilty beyond reasonable doubt of the murder of Miguel Badenas. The records and evidence before us convince us to agree with accused-appellant. Before the rule that positive identification prevails over mere denial and alibi may apply, it is necessary that the credibility of the eyewitness be first put beyond question. This Court has always recognized that the trial courts are the ones best-equipped to pass upon the credibility of witnesses, having had the opportunity to observe [16] firsthand the demeanor and actuations of the witness while on the witness stand. Where the trial court itself expresses doubts on the credibility of the eyewitness and looks to other evidence to secure the conviction, we are inclined to find less believable the identification by that eyewitness. The following portions of the RTC Decision serve to illustrate this point: Doubt may indeed be entertained with respect to the identification of the five accused only by prosecution witness Honorio Cabailo. The slaying of Miguel Badenas purportedly [17] took place at about 12 oclock midnight of May 4, 1994. It was not a moonlit night and the only source of light were the stars. Under the circumstances, the likelihood of a wrong identification may not altogether be precluded. Such being the case, the defense of alibi may gain some credence. But apart from the testimony of Honorio Cabailo is that of Danilo de Asis who declared that co-accused Edgar Crispin was with Felipe Crispin, Edmundo Losis, Henry Losis and Paquito Gomez drinking Ginebra in his (Danilo de Asiss) residence from about 8 oclock to 12 oclock midnight of May 4, 1994. At about 9 oclock that s ame evening Cesar Delima and Miguel Badenas also came and joined them in drinking. Moreover, included and forming part of the records of the case is the records of the preliminary investigation, among which is a sworn statement by Cesar Delima, taken by [18] the police of Roxas, Palawan, where he declared among others, that: xxx In its Brief, the OSG stated that it was not impossible for Cabailo to have properly identified the five accused despite the poor illumination since he saw the incident from a mere five meters away, and because he knew these people beforehand. However, these matters have formed part of the testimony of Honorio Cabailo, and have been taken into consideration by the trial court when it passed upon the overall credibility of Cabailos testimony. The matter of assigning values to declarations at the witness stand is most competently carried out by the trial judge who, unlike appellate magistrates, can weigh such testimony in light of the witnesss behavior and attitude at the trial, and the conclusions of the trial judge [19] command great weight and respect. When in the end, the trial court still declared that it found Honorio Cabailos identification of the accused doubtful, we will not disturb such finding on appeal. From the records of the case, we also note that the trial judge himself questioned Honorio Cabailo on whether there was sufficient illumination. Thus:

COURT: A : stars. Q A : :

Since it was nighttime, it was dark already, how were you able to see them? Eventhough it was nighttime the night was not totally dark because of the

Was there moonlight at the time? There was no moonlight, sir.

[20]

Hence, as clearly set out in the RTC Decision, above-quoted, the trial courts conviction of accusedappellant was not based on Cabailos identification, as it in fact found the same to be unsatisfactory, but on the testimony of Danilo de Asis and the affidavit of Cesar Delima. The affidavit of Cesar Delima details the attack and the killing by the accused of Miguel Badenas in the same way as Honorio Cabailo in his testimony, but with the significant distinction of having allegedly recognized the perpetrators with the aid of a flashlight. As mentioned earlier, Cesar Delima was named a principal witness in the Information, but he failed to testify despite being subpoenaed twice. In considering the affidavit as evidence, the RTC reasoned that the sworn statement formed part of the record of the case on preliminary investigation. We cannot uphold this. An affidavit is hearsay and has weak probative value, unless the affiant is placed on the witness stand to [21] testify on it. Being hearsay evidence, it is inadmissible because the party against whom it is presented is deprived of his right and opportunity to cross-examine the person to whom the statement or writing is [22] [23] attributed. The right to confront and cross-examine the witnesses against him is a fundamental right of every accused which may not be summarily done away with. Another reason why the right to confrontation is so essential is because the trial judges duty to observe and test the credibility of the [24] affiant can only be met by his being brought to the witness stand. That the affidavit formed part of the record of the preliminary investigation does not justify its being treated as evidence because the record of [25] the preliminary investigation does not form part of the record of the case in the RTC. Such record must be introduced as evidence during trial, and the trial court is not compelled to take judicial notice of the [26] same. The prosecution having failed to present Cesar Delima as a witness, his sworn statement was patently inadmissible and deserves no consideration at all. As for the testimony of Danilo de Asis, all that it proves is that the five accused and the victim left de Asiss house together on that fateful night. In his testimony, de Asis plainly professed that he had no [27] knowledge of the incidents that took place after they left his house. The evidence that may be adduced from de Asiss testimony is plainly circumstancial, and no inference may be drawn from it as to the probable guilt of accused-appellant for the crime charged. Settled is the rule that conviction should rest on the strength of the evidence of the prosecution and not [28] on the weakness of the defense. The identity of the offender, like the crime itself, must be proved [29] beyond reasonable doubt. Even though accused-appellant invokes the inherently weak defense of alibi, such defense nonetheless acquires commensurate strength in the instant case where no positive and proper identification has been made by the prosecution witnesses of the offender, as the prosecution still [30] has the onus probandi in establishing the guilt of the accused. The weakness of the defense does not relieve it of this responsibility. After having ascertained the affidavit of Cesar Delima to be inadmissible, and going by the trial courts plain declaration that the identification by Honorio Cabailo of the accused is doubtful, it is clear that in the instant case the prosecution has failed to present sufficient evidence to prove the guilt of accusedappellant beyond reasonable doubt. The acquittal of accused-appellant being apropos, we therefore find it unnecessary to pass upon the first assignment of error.

WHEREFORE, the Decision dated November 29, 1996 of the Regional Trial Court of Palawan, Branch 52, in Criminal Case No. 11926 convicting accused-appellant Edgar Crispin of murder is REVERSED, and accused-appellant is ACQUITTED of the crime charged on the ground of reasonable doubt. The Court orders his RELEASE from commitment unless he is held for some other legal cause or ground. Costs de oficio. SO ORDERED.

[G.R. No. 129978. May 12, 1999]

FELICIDAD M. ROQUE and PRUDENCIO N. MABANGLO, petitioners, vs. OFFICE OF THE OMBUDSMAN; HON. OMBUDSMAN ANIANO DESIERTO; and HON. MARGARITO P. GERVACIO, JR., Deputy Ombudsman for Mindanao, respondents. DECISION PANGANIBAN, J.: Consistent with the rights of all persons to due process of law and to speedy trial, the Constitution commands the Office of the Ombudsman to act promptly on complaints filed against public officials. Thus, the failure of said office to resolve a complaint that has been pending for six years is clearly violative of this mandate and the public officials rights. In such event, the aggrieved party is entitled to the dismissal of the complaint.

The Case

Filed before this Court is a Petition for Mandamus praying that the respondent public officers be directed to dismiss Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203 and subsequently to issue the necessary clearance in petitioners favor.

The Facts

The undisputed facts are narrated in respondents Memorandum as follows: Petitioner Felicidad M. Roque was a Schools Division Superintendent of the Department of Education, Culture and Sports (DECS), assigned in Koronadal, South Cotabato, until her compulsory retirement on May 17, 1991 (pp. 2-3, Petition). Petitioner Prudencio N. Mabanglo was likewise a Schools Division Superintendent of the DECS, assigned in Tagum, Davao Province, until his compulsory retirement on May 8, 1997 (ibid.)

[1]

On January 14, 1991, Laura S. Soriano and Carmencita Eden T. Enriquez of the COA, by virtue of COA Regional Office Assignment Order No. 91-174 dated January 8, 1991, conducted an audit on the P9.36 million allotment released by the DECS Regional Office No. XI to its division offices (Annexes M and N, Petition). As a result of the audit, auditors Soriano and Enriquez found some major deficiencies and violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019), violations of COA Circular Nos. 78-84 and 85-55A, DECS Order No. 100 and Section 88 of Presidential Decree No. 1445 (ibid.). Consequently, affidavits of complaint were filed before the Office of the Ombudsman -Mindanao against several persons, including petitioner Mabanglo on May 7, 1991, and against petitioner Roque on May 16, 1991 (ibid.). In an Order dated June 11, 1991, the Office of the Ombudsman-Mindanao found the complaints proper for a preliminary investigation. The case involving petitioner Mabanglo was docketed as OMB-MIN-910201 while that involving petitioner Roque was docketed as OMB-MIN-91-0203 (Annex O, Petition). Thereafter, petitioners filed their respective counter-affidavits (p. 4, Petition). On March 18, 1997, OMB-MIN-91-0201, which involved petitioner Mabanglo, was resolved by the Office of the Ombudsman-Mindanao, finding that all the respondents [were] probably guilty of violation of Section 3 (e) and (g) of the Anti-Graft and Corrupt Practices Act (Republic Act 3019). The same was approved by respondent Ombudsman Desierto on September 19, 1997. An Information dated March 18, 1997, for Violation of Section 3 (g) of Republic Act 3019, as amended, was filed before the Sandiganbayan, Manila, against several respondents, among them, petitioner Prudencio N. Mabanglo. The same was docketed as Criminal Case No. 24229. On April 30, 1997, OMB-MIN-91-0203, which involved petitioner Roque, was resolved by the Office of the Ombudsman-MIndanao, recommending the filing [of cases] and prosecution of all the respondents for violation of Section 3 (e) and (g) of Republic Act 3019. The same was approved by respondent Ombudsman Desierto on August 22, 1997. Two Informations similarly dated April 30, 1997, for violation of Section 3 (g) of Republic Act 3019, as amended, and for Violation of Section 3 (e) of Republic 3019, as amended, were filed before the Sandiganbayan, Manila. The Informations charged several respondents, among whom was petitioner Roque. The cases were docketed as Criminal Case No. 24105 and Criminal Case No. 24106, respectively. On August 14, 1997, petitioners instituted the instant petition for mandamus premised on the allegation that [a]fter the initial Orders finding the cases proper for preliminary investigation were issued on J une[,] 1991 and the subsequent submission of their counter-affidavits, until the present[,] or more than six (6) years, no resolution has been issued by the Public Respondent [and no] case [has] been filed with the appropriate court against the herein Petitioner (par. 3, p. 4, Petition). On November 24, 1997, this Honorable Court issued a temporary restraining order directing respondents [2] to cease and desist from further proceeding with the cases filed against petitioners. On August 21, 1998, petitioners asked the Court to cite respondents in contempt, contending that a criminal information was filed in violation of the Temporary Restraining Order (TRO). In compliance with [3] this Courts Resolution dated October 21, 1998, the respondents filed their Comment to the Petition for [4] Contempt.

Issues

In their Memorandum,

[5]

petitioners present before this Court the following issues:

Whether or not there was undue and unjustifiable delay in resolving [the] complaints against petitioners (respondents therein) which violated their constitutional right to [a] speedy disposition of cases[; and] Whether or not, such undue and unjustifiable delay in resolving the complaints against petitioners, [6] would warrant dismissal of said complaints. In addition, we shall also discuss (1) the propriety of mandamus as a remedy and (2) the respondents liability for contempt for allegedly violating the Temporary Restraining Order issued by this Court on November 24, 1997.

The Courts Ruling

The Court grants the Petition for Mandamus, but denies the prayer to cite respondents in contempt of court.
Preliminary Issue: Propriety of Mandamus

Respondents argue that petitioners cannot, by this special action for mandamus, compel the ombudsman to dismiss the criminal charges filed against them, since such dismissal involves a discretionary, not a ministerial, duty. The argument is not meritorious. As a general rule, the performance of an official act or duty, which necessarily involves the exercise of discretion or judgment, cannot be compelled by mandamus. This Court, however, has held that the rule does not apply in cases where there is gross abuse of discretion, [7] manifest injustice, or palpable excess of authority. In First Philippine Holdings Corporation v. Sandiganbayan, the Court explained: Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall [8] issue. The Court gave a similar ruling in Kant Kwong v. Presidential Commission on Good Government:
[9]

Although as averred by respondents, the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or another, yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority. In Angchangco, Jr. v. Ombudsman,
[10]

this Court likewise held:

It is correct, as averred in the comment, that in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of [11] discretion, manifest injustice, or palpable excess of authority.

The exceptions cited apply to this case. It is undisputed that there has already been a long and unwarranted delay in the resolution of the graft charges against the two petitioners. The Complaint against Petitioner Mabanglo was filed with the Office of the Ombudsman in Mindanao way back on May 7, 1991, and that against Petitioner Roque on May 16, 1991. On June 11, 1991, the said Office found the Complaints sufficient for preliminary investigation. Significantly, no action was taken until after the lapse of almost six years. For violation of Section 3 (g) of RA 3019, the same Office recommended the filing of an Information against Petitioner Mabanglo only on March 18, 1997, and against Petitioner Roque only on April 30, 1997.

Main Issue: Violation of Petitioners Constitutional Rights

Clearly, the delay of almost six years disregarded the ombudsmans duty, as mandated by the [12] [13] Constitution and Republic Act No. 6770, to act promptly on complaints before him. More important, it violated the petitioners rights to due process and to a speedy disposition of the cases filed against them. Although respondents attempted to justify the six months needed by Ombudsman Desierto to review the recommendation of Deputy Ombudsman Gervasio, no explanation was given why it took [14] almost six years for the latter to resolve the Complaints. Thus, in Angchangco, Jr. v. Ombudsman, this Court dismissed a Complaint that had been pending before the Office of the Ombudsman for more than six years, ruling as follows: After a careful review of the facts and circumstances of the present case, the Court finds the inordinate delay of more than six years by the Ombudsman in resolving the criminal complaints against petitioner to be violative of his constitutionally guaranteed right to due process and a speedy disposition of the cases [15] against him, thus warranting the dismissal of said criminal cases... Similarly, in Tatad v. Sandiganbayan, this Court dismissed the Complaints, which the then tanodbayan was able to resolve only after the lapse of three years since the cases had been submitted for disposition, viz.: We find the long delay in the termination of the preliminary investigation by the Tanodba yan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutio nal guarantee of speedy disposition of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioners constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republc Act 3019, which certainly did not involve complicated legal and factual issues necessitating such painstaking and grueling scrutiny as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving [of] unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. (Emphasis supplied.)
[16]

We are not persuaded by respondents argument that the Petition for Mandamus became moot and academic when the Complaints were resolved by the Office of the Ombudsman for Mindanao and the Informations were filed. The same contention was rejected in Tatad v. Sandiganbayan, wherein the Court declared that the long and unexplained delay in the resolution of the criminal complaints against petitioners was not corrected by the eventual filing of the Informations. The Court ruled: It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True --- [for] the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation cannot be corrected, for until now, man has not yet invented a device for setting back time. x x x the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and the speedy disposition of cases against him. Accordingly, the informations x x x should be dismissed x x [17] x. Although petitioners prayed only for the issuance of a ruling directing the dismissal of Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203, this Court, in the interest of the speedy disposition of cases, resolves to dismiss the above cases directly. This ruling is in line with Angchangco, in which the Court dismissed the complaints outright, although petitioner therein sought merely to compel the ombudsman to do so.
Additional Issue: No Contempt of Court

Petitioner Mabanglo moves to have respondents and their agents cited in contempt of court for allegedly filing an Information against him in violation of the November 24, 1997 TRO issued by the Court, which ordered them to cease and desist from proceeding with the cases. The Petition to cite respondents in contempt is patently devoid of merit. In the first place, the Information against Petitioner Mabanglo was filed on September 25, 1997, before the issuance of the TRO on November 24, 1997. Hence, the TRO could not have been violated. In the second place, the said Petition for Contempt was filed in contravention of Section 4 (2), Rule 71 of the 1997 Rules of [18] Court, which states that if a petition for contempt arises from or is related to a principal action pending in court, it shall be docketed, heard and decided separately unless the court or ders that both the principal action and the petition for contempt be consolidated for joint hearing and decision. In the instant case, the Petition for Contempt, which arose from the Petition for Mandamus, was filed as an integral part of the latter and under the same docket or case number. There is no showing that this Court has ordered their consolidation. WHEREFORE, the Petition for Mandamus is GRANTED and Ombudsman Case Nos. OMB-91-0201 and OMB-91-0203 are accordingly DISMISSED. The Petition to declare respondents in contempt is herebyDENIED. No costs.

[G.R. Nos. 120681-83. October 1, 1999]

JEJOMAR C. BINAY, petitioner, vs. HON. SANDIGANBAYAN (Third Division) and the DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,respondents.

[G.R. No. 128136. October 1, 1999]

MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D. MABIOG, REGINO E. MALAPIT, ERLINDA I. MASANGCAY and VICENTE DE LA ROSA, petitioners, vs. HON. SANDIGANBAYAN, HON. OMBUDSMAN and its PROSECUTOR WENDELL BARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY JOSEPH F. MALLONGA and GIDEON C. MENDOZA, respondents. DECISION KAPUNAN, J.: Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential Decree No. 1486 created an Anti-Graft Court known as the Sandiganbayan. Since then the jurisdiction of the Sandiganbayan has [1] under gone various changes, the most recent of which were effected through Republic Act Nos. [2] [3] 7975 and 8249. Whether the Sandiganbayan, under these laws, exercises exclusive original jurisdiction over criminal cases involving municipal mayors accused of violations of Republic Act No. [4] [5] 3019 and Article 220 of the Revised Penal Code is the central issue in these consolidated petitions. In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among others, the Resolution of the Sandiganbayan denying his motion to refer Criminal Case Nos. 21001, 21005 and 21007 to the Regional Trial Court (RTC) of Makati and declaring that the Sandiganbayan has jurisdiction over said cases despite the enactment of R.A. No. 7975. In G.R. No. 128136, petitioner Mario C. Magsaysay, et al. assail the October 22, 1996 Resolution of the Sandiganbayan, reversing its Order of June 21, 1996 which suspended the proceedings in Criminal Case No. 23278 in deference to whatever ruling this Court will lay down in the Binay cases. The facts, as gathered from t he records, are as follows:

G.R. Nos. 120681-83 On September 7, 1994, the Office of the Ombudsman filed before the Sandiganbayan three separate informations against petitioner Jejomar Binay, one for violation of Article 220 of the Revised Penal [6] [7] Code, and two for violation of Section 3(e) of R.A. No. 3019. The informations, which were subsequently amended on September 15, 1994, all alleged that the acts constituting these crimes were committed in 1987 during petitioners incumbency as Mayor of Makati, then a municipality of Metro Manila. Thereafter, petitioner moved to quash the informations. He contended that the six-year delay from the time the charges were filed in the Office of the Ombudsman on July 27, 1988 to the time the informations were filed in the Sandiganbayan on September 7, 1994 constituted a violation of his right to due process. Arraignment of the accused was held in abeyance pending the resolution of this motion. On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioners motion to quash. Petitioners motion for reconsideration, which was opposed by the prosecution, was likewise denied by the Sandiganbayan. The resolution denying the motion for reconsideration, however, was issued before the petitioner could file a reply to the prosecution s opposition to the motion for reconsideration. In the meantime, on March 31, 1995, the prosecution filed a Motion to Suspend Accused Pendente Lite. The Sandiganbayan, in a Resolution dated April 25, 1995, granted the motion and ordered the suspension of petitioner for ninety days from receipt of the resolution. The court ruled that the requisites

for suspension pendente lite were present as petitioner was charged with one of the offenses under [8] Section 13 of R.A. No. 3019 and the informations containing these charges had previously been held valid in the resolution denying the motion to quash and the resolution denying the motion for reconsideration. Petitioner thus filed before this Court a petition for certiorari, to set aside the resolution denying his motion for reconsideration, claiming that he was denied due process when the Sandiganbayan ordered his suspension pendente lite before he could file a reply to the prosecutions opposition to his motion for reconsideration of the resolution denying the motion to quash. In a Resolution dated April 28, 1995, the Court directed the Sandiganbayan to, among other things, permit petitioner to file said reply. After allowing and considering petitioners reply, the Sandiganbayan, on June 6, 1995, issued a Resolution reiterating the denial of his motion for reconsideration of the denial of the motion to quash. On the same day, the Sandiganbayan issued another resolution reiterating the order suspending petitioner pendente lite. Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan, took effect on May 16, [10] 1995. On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer his cases to the proper court for further proceedings, alleging that when the two Resolutions, both dated June 6, 1995, were issued by the Anti-Graft Court, it had already lost jurisdiction over the subject cases. The Sandiganbayan, in a Resolution dated July 4, 1995, denied petitioners motion, holding thus: There is no question that Municipal Mayors are classified as Grade 27 under the compensation & Position Classification Act of 1989. Since, at the time of the commission of the offenses charged in he above-entitled cases, the accused Mayor Jejomar C. Binay was a Municipal Mayor, although in an acting or interim capacity, the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases therein filed against him. The allegation that Mayor Binay ought to have been classified with a salary grade lower than Grade 27, because at the time of the commission of the offenses charged he was paid a salary which merits a grade lower than Grade 27 does not hold water. In 1986 when the herein offenses were committed by the accused, the Compensation & Position Classification Act of 1989 was not as yet in existence. From the very definition of he very Act itself, it is evident that the Act was passed and had been effective only in 1989. The Grade classification of a public officer, whether at the time of the commission of the offense or thereafter, is determined by his classification under the Compensation & Position Classification Act of 1989. Thus since the accused Mayor Jejomar C. Binay was a Municipal Mayor at the time of the commission of the offenses and the Compensation & Position Classification Act of 1989 classifies Municipal Mayors as Grade 27, it is a conclusion beyond cavil that the Sandiganbayan has jurisdiction over the accused herein. As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor Jejomar C. Binay had begun receiving a monthly salary of P15,180.00 which is equivalent to Grade 28 under the salary scale provided for in Section 27 of the said Act. Under the Index of Occupational Services, the position titles and salary grades of the Compensation & Position classification system prepared by the Department of Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the position of Municipal [11] Mayor had been classified as Grade 27. On July 7, 1995, petitioner filed the present petition for certiorari, prohibition and mandamus questioning the jurisdiction of the Sandiganbayan over Criminal Case Nos. 21001, 21005 and 21007. He prayed, among others, that the Court annul and set aside: (1) the Resolution of the Sandiganbayan dated June 6, 1995 reiterating the denial of the motion for reconsideration of the motion to quash; (2) the Resolution of the same court also dated June 6, 1995 reiterating the order suspending petitioner pendente lite; and (3) the Resolution of the Sandiganbayan dated July 4, 1995 denying the motion to refer case to the RTC. Petitioner also asked that the Court issue a temporary restraining order preventing the suspension and arraignment of petitioner. The Court on July 7, 1995, resolved, among others, to issue the temporary restraining order prayed for.
[9]

On July 14, 1995, petitioner filed an Addendum to Petition (To allow the introduction of alte rnative reliefs), praying that, should this Court hold that the Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be dismissed just the same on the ground that the long delay of the preliminary investigation before the Ombudsman prior to the filing of the informations, deprived him of his right to due process; and that, moreover, there was no probable cause to warrant the filing of the informations.

G.R. No. 128136 Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual, Batangas. Save for petitioner Vicente dela Rosa, all of Mayor Magsaysays co -petitioners are officials of the same municipality. In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San Pascual, Batangas, charged petitioners along with Elpidia Amada, Jovey C. Babago, and Brigido H. Buhain, also officials of San Pascual Batangas, with violation of R.A. No. 3019, as amended. The complaint charged the respondent municipal officials of overpaying Vicente de la Rosa of TDR Construction for the landscaping project of the San Pascual Central School. This was docketed in the Office of the Ombudsman as OMB-1-94-1232. In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A. Alarilla recommended the filing of an information for violation of Section 3(e) and (g) of R.A. No. 3019, as amended, against petitioners with the Sandiganbayan. Director Elvis John S. Asuncion concurred in the resolution, and Manuel C. Domingo, Deputy Ombudsman for Luzon, recommended approval of the same. The resolution was approved by then Acting Ombudsman Francisco A. Villa with the following marginal note: Authority is given to the deputy Ombudsman for Luzon to cause the preparation of the information and to [12] approve the same for filing with the proper court. On August 11, 1995, an Information for violation of Section 3 (e) and (g) was filed against petitioners and Jovey C. Babago, not with the Sandiganbayan per the June 14, 1995 Resolution, but with the RTC of Batangas City. The information was signed by a Lourdes A. Alarilla, the same Graft Investigation Officer who recommended the filing of the information with the Sandiganbayan. In the meantime, a group denominated as the Concerned Citizens of San Pascual, Batangas filed a complaint before the Ombudsman against petitioners, and Elpidia Amada and Brigido Buhain, with violations of R.A. No. 3019. The complaint also alleged, among others, the overpricing of the landscaping project of San Pascual Central School. The case was docketed as OMB-0-94-0149. In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M. Nocos recommended the filing of an information charging petitioners with violation of Section 3(e) and (g) of R.A. No. 3019, as amended with proper court. The resolution, which was recommended for approval by Nicanor J. Cruz, OIC-Deputy Ombudsman for Luzon, and approved by Ombudsman Aniano A. Desierto, adopted the findings and conclusions in the resolution in OMB-1-94-1232 that the landscaping project was overpriced. On February 9, 1996, another Information for violation of Section 3(e) of R.A. No. 3019, as amended, was filed against petitioners for the overpricing of the landscaping project, this time before the Sandiganbayan. The information was subsequently amended on May 17, 1996. Except for the date the alleged crime was committed, the information charged essentially the same inculpatory facts as the information filed in the RTC. The case was docketed in the Sandiganbayan as Crim. Case No. 22378. On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash the information in Crim. Case No. 22378 on the following grounds: that the Sandiganbayan had no jurisdiction over the case; that the accused were charged with the same offense in two informations; and that the proceedings in the Sandiganbayan would expose petitioners to double jeopardy. The Sandiganbayan denied the accuseds motion to quash in a Resolution dated June 21, 1996. The court, however, suspended

proceedings in the case until the Supreme Court resolved the question of the Sandiganbayans jurisdiction involved in the Binay petition. Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan, arguing that under R.A. No. 7975 the Sandiganbayan, not the RTC, had jurisdiction over the case. On July 3, 1996, the RTC issued an order holding in abeyance the resolution of the motion to refer the case since the issue of jurisdiction was pending before the Sandiganbayan. Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion for reconsideration of the Sandiganbayans Order dated Ju ne 21, 1996. On August 2, 1996, filed their own motion for the reconsideration of the same order. On October 22, 1996, the Sandiganbayan granted the motion for reconsideration filed by the prosecution and set the case for arraignment. Petitioners moved for a reconsideration of the October 22, 1996 Resolution ordering their arraignment, which motion was denied on February 17, 1997. On February 27, 1997, the accused filed the present petition. On October 1, 1997, the Court resolved to issue a temporary restraining order to prevent respondents from further proceeding with Crim. Case No. 23278 of the Sandiganbayan. The petition raises the following issues: I Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of an information for the same offense before the Regional Trial Court having territorial jurisdiction and venue of the commission of the offense? II Are the respondents Ombudsman and the prosecutors estopped by laches or waiver from filing and prosecuting the case before respondent Sandiganbayan after the filing earlier of the information in the proper court, thereafter repudiating it, seeking another court of the same category and finally to respondent court? III Whether or not the filing of two (2) informations for the same offense violated the rule on duplicity of information? IV Whether or not the trial to be conducted by respondent court, if the case shall not be dismissed, will expose the petitioners who are accused therein to double jeopardy? V Under the circumstances, are the respondent Ombudsman and the prosecutors guilty of forum [13] shopping? On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the Magsaysay petition) with G.R. Nos. 120681-83 (the Binay petition). In resolving these consolidated petitions, the Court shall first address the common question of the Sandiganbayans jurisdiction.

I The Court rules that it is the Sandiganbayan which has jurisdiction over the subject cases. The informations against Mayor Binay were filed in the Sandiganbayan on July 7, 1994, pursuant to [14] [15] Presidential Decree No. 1606, as amended by Presidential Decree No. 1861, the pertinent provisions of which state: SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise: (a) Exclusive original jurisdiction in all cases involving:

(1) 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 of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. xxx. On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had not yet been arraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was already in effect when the information against Mayor Magsaysay et al., was filed on August 11, 1995 in the RTC of Batangas City. Section 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as follows: Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise 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 of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) (d) (e) Officials of the diplomatic service occupying the position of consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; 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 and 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) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. In cases where none of the principal accused are occupying positions corresponding to salary grade 27 or higher, as prescribed in the said Republic Act No. 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 jurisdiction as provided in Batas Pambansa Blg. 129. xxx. While the cases against petitioners were pending in this Court, congress enacted R.A. No. 8249, again redefining the jurisdiction of the Anti-Graft Court. This law took effect, per Section 10 thereof, on February 23, 1997, fifteen days after its complete publication on February 8, 1997 in the Journal and Malaya, two newspapers of general circulation. As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606 now reads: SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at he time of the commission of the offense: (1) Officials of the executive branch occupying the position of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (2) Members of Congress and officials thereof classified as Grade 27 and up unde r the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of he Constitution; and (5) All other national and local officials classified as Grade 27 and 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 heir office. d. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14A, 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 No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided inBatas Pambansa Blg. 129, as amended. Petitioners contend that they do not come under the exclusive original jurisdiction of the Sandiganbayan because: (1) At the alleged time of the commission of the crimes charged, petitioner municipal mayors were not classified as Grade 27. (2) Municipal mayors are not included in the enumeration in Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. (3) Congressional records reveal that the law did not intend municipal mayors to come under the exclusive original jurisdiction of the Sandiganbayan.

In support of his contention that his position was not that of Grade 27, Mayor Binay argues: xxx. The new laws consistent and repeated reference to salary grade show[s] an intention to base the separation of jurisdiction between the Sandiganbayan and the regular courts on pay scale. Grades are determined by compensation. The essence of grades is pay scales. Therefor, pay scales determine [16] grades. Mayor Binay, thus, presented a Certification from the City Personnel Officer of Makati stating that petitioner as mayor received a monthly salary of only P10,793.00 from March 1987 to December 31, 1988. This amount was supposedly equivalent to Grade 22 under R.A. No. 6758. Mayor Magsaysay, for his part, submitted a similar Certification San Pascual, Batangas, stating:
[18] [17]

from the Municipal Treasurer of

x x x that the basic monthly salary received by Mario C. Magsaysay, Municipal Mayor of San Pascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND EIGHT HUNDRED TWENTY EIGHT PESOS (P11,828.00) per month as of November 3, 1993 equivalent only to Grade 25, Step 5 of RA 6758, the Compensation and Position Classification Act of 1989. Section 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary constraints. This certification is issued to Mayor Mario C. Magsaysay this 30th day of May 1996 at San Pascual, Batangas for whatever legal purpose and/or purposes it may serve. The Court does not subscribe to the manner by which petitioners classify Grades. The Constitution states that in providing for the standardization of compensation of government officials and employees, Congress shall take into account the nature of the responsi bilities pertaining to, and the qualifications required for their positions, thus: The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. Corollary thereto, Republic Act No. 6758 provides in Section 2 thereof that differences in pay are to be based upon substantive differences in duties and responsibilities, and qualification requirements of the positions. In short, the nature of an officials position should be the determining factor in the fixing of his or her salary. This is not only mandated by law but dictated by logic as well. Consistent with these policies, the law employs the scheme known as the grade defined in [21] Presidential Decree No. 985 as including xxx all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of [22] the work to warrant the inclusion of such classes of positions within one range of basic compensation. The grade, therefore, depends upon the nature of ones position -- the level of difficulty, responsibilities, and qualification requirements thereof -- relative to that of another position. It is the officials Grade that determines his or her salary, not the other way around. It is possible that a local government officials salary may be less than that prescribed for his Grade since his salary depends also on the class and financial capability of his or her respective local [23] government unit. Nevertheless, it is the law which fixes the officials grade. Thus, Section 8 of R.A. 6758 fixes the salary grades of the President, Vice-President, Senate President, Speaker, Chief Justice, Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen and Members of the Constitutional
[20] [19]

Commissions. Section 8 also authorizes the Department of Budget and Management (DBM) to determine the officials who are of equivalent rank to the foregoing officials, where applicable and to assign such officials the same Salary Grades subject to a set of guidelines found in said section. For positions below those mentioned under Section 8, Section 9 instructs the DBM to prepare the Index of Occupational Services guided by the Benchmark Position prescribed in Section 9 and the factors enumerated therein. To determine whether an official is within the exclusive original jurisdiction of the Sandiganbayan, therefore, reference should be made to R.A. No. 6758 and the Index of Occupational Services, Position Titles and Salary Grades. Salary level is not determinative. An officials grade is not a matter of proof, [24] but a matter of law of which the Court must take judicial notice. As both the 1989 and 1997 versions of the Index of Occupational Services, Position Titles and Salary Grades list the municipal Mayor under Salary Grade 27, petitioner mayors come within the exclusive original jurisdiction of the Sandiganbayan. Petitioner mayors are local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989, under the catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No. 7975. More accurately, petitioner mayors are [o]fficials 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 [25] of 1989, under Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975.

B Petitioners, however, argue that they are not included in the enumeration in Section 4a(1). They invoke the rule in statutory construction expressio unius est expressio alterius. As what is not included in those enumerated is deemed excluded, municipal officials are excluded from the Sandiganbayans exclusive original jurisdiction. Resort to statutory construction, however, is not appropriate where the law is clear and [26] unambiguous. The law is clear in this case. As stated earlier, Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975, speaks of [o]fficials of the executive branch occupying the positions of regional director and higher, other wise classified as grade 27 and higher, of the compensation and Position Classification Act of 1989. The Court fails to see how a different interpretation could arise even if the plain meaning rule were disregarded and the law subjected to interpretation. The premise of petitioners argument is that the enumeration in Section 4a(1) is exclusive. It is not. The phrase specifically including after [o]fficials 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 necessarily conveys the very idea of non -exclusivity of the enumeration. The principle of expressio unius est exclusio alterius does not apply where other [27] circumstances indicate that the enumeration was not intended to be exclusive, or where the [28] enumeration is by way of example only. In Conrado B. Rodrigo, et al. vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the catchall in Section 4a(5) was necessary for it would be impractical, if not impossible, for Congress to list down each position created or will be created pertaining to grades 27 and above. The same rationale applies to the enumeration in Section 4a(1). Clearly, the law did not intend said enumeration to be an exhaustive list. Should there be any doubts as to whether petitioner mayors are under the category of Grade 27, Section 444(d) of the Local Government Code settles the matter: The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

In the Courts Resolution in Rodrigo dated July 2, 1999 denying the motion for reconsideration, we treated the above provision as confirmatory of the Salary Grade assigned by the DBM to Municipal Mayors.

C Petitioner Binay cites previous bills in Congress dealing with the jurisdiction of the Sandiganbayan. These bills supposedly sought to exclude municipal officials from the Sandiganbayans exclusive original jurisdiction to relieve these officials ,especially those from the provinces, of the financial burden brought about by trials in Manila. The resort to congressional records to determine the proper application of the law in this case is unwarranted in this case for the same reason that the resort to the rule of inclusio unius est expressio alterius is inappropriate. Verily, the interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from language employed and the statute must be taken to mean exactly what it says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible to interpretation. It must be applied regardless of who may be affected, even if the law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be conceded, the same as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Thus, where a general rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. [30] CA., 145 SCRA 654 [1986]). Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration: x x x that the inclusion of Municipal Mayors within the jurisdiction of the Sandiganbayan would be inconvenient since the witness in their case would come from Baguio City and San Nicolas, Pangasinan. This, according to petitioners, would defeat one of the purposes of R.A. No. 7975, that is, the convenience of the accused. The Court, in denying the motion for reconsideration, held, among others, that: The legislature has nevertheless chosen the mode and standard by which to implement its intent, and courts have no choice but to apply it. Congress has willed that positions with Grade 27 and above shall come within the jurisdiction of the Sandiganbayan and this Court is duty-bound to obey the congressional will. Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating: Since February 1979, when the Sandiganbayan was established up to the present, the Court has been confronted with the problem of those accused who are of limited means who stand trial for petty crimes, the so-called small fry -- the barangay officials, the municipal officials and employees, postal clerks and letter carriers and the like -- who are involved with nickel-and-dime cases and money-related cases such as malversation, estafa and theft. xxx xxx xxx xxx
[29]

Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such that only those [31] occupying high positions in Government and the military fall under the jurisdiction of the court. It is not clear, however, whether Senator Roco meant that all municipal officials are excluded from the jurisdiction of the Sandiganbayan. In any case, courts are not bound by a legislators opinion in congressional debates regarding the interpretation of a particular legislation. It is deemed a mere [32] personal opinion of the legislator. Such opinions do not necessarily reflect the view of the entire [33] Congress.

D From the foregoing discussion, it is clear that the cases against petitioner Binay cannot be referred to the regular courts under Section 7 of R.A. No. 7975, which provides: Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. In construing the correct import of Section 7, it may be helpful to refer to the guidelines in [34] determining jurisdiction laid down in Bengzon vs. Inciong: The rule is that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of the statute. R.A. No. 7975, by virtue of Section 7, belongs to the exception rather than the rule. The provision is transitory in nature and expresses the legislatures intention to apply its provisions on jurisdiction to criminal cases in which trial has not begun in the Sandiganbayan. To this extent, R.A. 7975 is retroactive. Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions are found in other laws [35] reallocating the jurisdiction of the courts. There is no reason why Section 7 of R.A. No. 7975 should be any different. The term proper courts, as used in Section 7, means courts of competent jurisdiction, and such jurisdiction is defined in Section 4 of P.D. No. 1606, as amended by R.A. No. 7975. The former should not be read in isolation but construed in conjunction with the latter. The term proper courts as used in Section 7, therefore, is not restricted to regular courts, but includes as well the Sandiganbayan, a special court. If the intent of Congress were to refer all cases the trials of which have not begun to the regular courts, it should have employed the term proper regular courts or regular courts instead of proper courts. Accordingly, the law in the third paragraph of Section 4 P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term regular courts, not proper courts: The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than salary grade 27, or not otherwise covered by the preceding enumeration. [Underscoring supplied.] Construed thus, the effects of Section 7 may be summarized as follows:

1. If trial of cases before the Sandiganbayan has already begun as of the approval of R.A. No. 7975, R.A. No. 7975 does not apply. 2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A. No. 7975, then R.A. No. 7975 applies. (a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has jurisdiction over a case before it, then the case shall be referred to the Sandiganbayan. (b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be referred to the regular courts. The trial of the cases involving Mayor Binay had not yet begun as of the date of the approval of R.A. 7975; consequently, the Anti-Graft Court retains jurisdiction over the said cases. In any case, whatever seeming ambiguity or doubt regarding the application of Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249, which 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. The latter provision more accurately expresses the legislatures intent and in any event should be applied in this case, R.A. No. 8249 having superseded R.A. No. 7975. In Panfilo M. Lacson vs. The Executive Secretary, et al., foregoing provision.
[36]

The Court explained the purpose of the

x x x it can be reasonably anticipated that an alteration of [Sandiganbayans] jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. x x x. The transitory provision does not only cover cases which are in the Sandiganbayan but also in any court. x x x. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (RA 8249). [Emphasis in the original.] The possible disruptive effect of the amendments to the Sandiganbayans jurisdiction on pending cases was, therefore, not lost on the legislature. Congress has, furthermore, deemed the commencement of the trial as the crucial point in determining whether a court retains a case pending before it or lose the same on the ground of lack of jurisdiction per the provisions of R.A. 8249. The law obviously does not want to waste the time and effort already devoted to the presentation of evidence if trial had already begun. On the other hand, not much disruption would be caused if the amendment were made to apply to cases the trials of which have not yet to start. The ramifications of Section 7 of R.A. No. 8249 may be stated as follows: 1. If trial of the cases pending before whatever court has already begun as of the approval of R.A. No. 8249, said law does not apply. 2. If trial of cases pending before whatever court has not begun as of the approval of R.A. No. 8249, then said law applies. (a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains jurisdiction.

(b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case shall be referred to the regular courts.

(c) If the Sandiganbayan has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall be referred to the Sandiganbayan. (d) If a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction. Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains jurisdiction over said cases. II Petitioner Binay avers in his Addendum to Petition that his right to speedy disposition has been violated by the inordinate delay in the resolution of the subject cases by the Ombudsman. Article III of the Constitution provides that: Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. The constitutional right to a speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all [37] proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to [38] a case may demand expeditious action on all officials who are tasked with the administration of justice. However, the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable [40] motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant is weighed, and such factors as the length of the delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the [41] delay. The concept of speedy disposition is a relative term and must necessarily be a flexible [42] concept. A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard [44] must also be taken of the facts and circumstances peculiar to each case. In Tatad vs.Sandiganbayan, the Court held that the length of delay and the simplicity of the issues [46] did not justify the delay in the disposition of the cases therein. The unexplained inaction of the prosecutors called for the dismissal of the cases against petitioner Tatad. In Alvizo vs. Sandiganbayan, the Court also ruled that there was no violation of the right to speedy disposition. The Court took into account the reasons for the delay, i.e., the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court likewise considered the failure of the accused to assert such right, and the lack of prejudice caused by the delay to the accused. In Santiago vs. Garchitorena, the complexity of the issues and the failure of the accused to invoke her right to speedy disposition at the appropriate time spelled defeat to her claim to the constitutional guarantee. In Cadalin vs. POEAs Administrator, the Court, considering also the complexity of the cases (not run-of-the-mill variety) and the conduct of the parties lawyers, held that the right to speedy disposition was not violated therein. In petitioner Binays case, the Court finds that there was no undue delay in the disposition of the subject cases. The proceedings conducted before the Office of the Tanodbayan, and later with the Office of the Ombudsman, adequately explains the length of the delay:
[49] [48] [47] [45] [43] [39]

1. That on July 27, 1988 Bobby Brillante filed with the Office of the Tanodbayan an affidavitcomplaint charging, Jejomar Binay, Sergio Santos, Roberto Chang, Delfin Almeda, Nelson Irasga, Nicasio Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena Diaz, Virgilio Clarete, Godofredo Marcelo, Armando San Miguel, Salvador Pangilinan and John Does of the following offenses: (a) Massive Malversation of Public Funds; (b) Multiple Falsification of Public Documents; (c) Usurpation of Official Functions; (d) Violation of Election Law; and (e) Violation of Sec. 3(e) of R.A. 3019. 1.1. Brillantes complaint was based on the initial findings and observations of the COA on the examination of the cash and accounts covering transactions from April 1, 1987 to January 4, 1988 and Post-Audit of Selected Accounts for the last quarter of 1987 of the Municipality of Makati contained in its Report dated January 11, 1988. The COA furnished the Tanodbayan a copy of this report on August 1, 1988 upon request of the latter. 1.2. In the letter of the COA transmitting a copy of the report, the Tanodbayan was informed that this COA audit report of January 11, 1988 is not yet released since the Mayor of Makati was given thirty days within which to explain/clarify the findings in the report and is subject to change or modification depending upon the explanation/clarification to be submitted by the Mayor of Makati. Because of this information from the COA the preliminary investigation was held in abeyance until the submission of the final report. 1.3. On March 1, 1989, the first part of the Final Report on Audit of Makati was received by the Office of the Ombudsman and was transmitted for purposes of the ensuring preliminary investigation to the Tanodbayan which received the same on March 22, 1989. 1.4. This first part of the Final Report contained the fifteen (15) adverse findings, above elsewhere stated as the basis of Bobby Brillantes complaint. 1.5. Eleven (11) COA auditors participated in the documentation and analysis of its findings and preparation of the final report. 1.6. The first part of the final report was followed by a Supplemental Report on Findings No. 1 and 3. This Supplemental Report is dated July 3, 1989. 2. After securing machine copies of the voluminous documents supporting the COA findings, Pros. Margarito Gervacio, Chairman of the Panel of Prosecutors, issued the corresponding subpoena directing the respondents to submit their respective counter-affidavits. 2.1. In compliance with the subpoena, Mayor Jejomar Binay submitted his counteraffidavit on May 18, 1990, Marissa Chan, Feliciano Bascon, Nicanor Santiago, Jr. on June 19, 1990, Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6, 1990, Roberto Chang on August 27, 1990. Feliciano Bascon submitted his Supplemental Affidavit on November 22, 1990. 2.2. Thereafter, clarificatory examinations were conducted on September 27, 1990, October 26, 1990, November 8, 9, 14, 22, 1990. 3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this Petition for Certiorari in G.R. No. 92380 which he and the municipality of Makati filed with the Supreme Court against COA Chairman, Eufemio Domingo and the Commission on Audit, with a manifestation that said petition is submitted to support Binays stand as regard COA Finding No. 9 aforestated. 4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing allegations incriminating Jejomar Binay; 5. Upon being ordered to comment on the said April 2, 1992 affidavit of Marissa Chan, Jejomar Binay submitted his comment thereto on April 30, 1992.

6. On August 4, 1993, the Investigation Panel submitted to the Deputy Special Prosecutor its Resolution disposing the preliminary investigation of the case. 6.1. On August 10, 1993 the said Resolution was approved by the Special Prosecutor, who forwarded the same and the entire records to the Office of the Ombudsman for review and/or final action. 6.2. On August 16, 1994, the Review Panel of the Ombudsman submitted to the latter its review action for approval. 6.3. On August 19, 1994, the Ombudsman approved some of the recommendations of [50] the Review Panel and directed the preparation and filing of the informations. Furthermore, the prosecution is not bound by the findings of the Commission on Audit (COA); it must rely on its own independent judgment in the determination of probable cause. Accordingly, the prosecution had to conduct it s own review of the COA findings. Judging from said findings, we find that the cases were sufficiently complex, thus justifying the length of time for their resolution. As held by the Sandiganbayan in its Resolution dated March 29, 1995 denying the Motion to Quash: 2. Ten charges are involved in these cases and the prosecution, unable to rely on the raw findings of the Commission on Audit in 15 reports caused the investigation and examination of thousands of vouchers, payrolls, and supporting documents considering that no less than the Chairman of the Commission on Audit, assisted by a team supervisor and 10 team members had to take part in the conduct of a final audit consisting of evaluation and analysis of the initial findings in the 15 raw reports, the cases must have involved complicated legal and factual issues which do warrant or justify a longer period of time for preliminary investigation. xxx 5. In the TATAD case, the preliminary investigation was resolved close to three (3) years from the time all the counter-affidavits were submitted to the Tanodbayan, notwithstanding the fact that very few documentary and testimonial evidence were involved. In the aboveentitled cases, the preliminary investigation of all ten (10) cases was terminated in merely two (2) years and four (4) months from the date Mayor Binay filed his last pleading, on April [51] 30, 1992. Petitioner claims that the Resolution of the Sandiganbayan ordering his suspension pendente lite is unwarranted since the informations charging him were not valid. This contention, however, must fail in view of our pronouncement that there was no delay in the resolution of the subject cases in violation of his right to speedy disposition. Accordingly, the informations in question are valid an petitioners suspension pendente lite must be upheld. Finally, whether or not there is probable cause to warrant the filing of the subject cases is a question best left to the discretion of the Ombudsman. Absent any grave abuse of such discretion, the Court will [52] not interfere in the exercise thereof. Petitioner in this case has failed to establish any such abuse on the part of the Ombudsman. III Having ruled that the criminal case against petitioners in G.R. No. 128136 is within the exclusive original jurisdiction of the Sandiganbayan, the Court will now dispose of the following issues raised by them: (1) The Sandiganbayan was ousted of its jurisdiction by the filing of an information alleging the same facts with the Regional Trial Court. (2) Respondents are estopped from filing an information before the Sandiganbayan considering that they had already filed another information alleging the same facts before the Regional Trial Court.

(3)

The filing of the information before the Sandiganbayan constitutes double jeopardy.

The Court tackles these arguments successively then deals with the questions of duplicity of information and forum shopping. Petitioners invoke the rule that the jurisdiction of a court once it attaches cannot be ousted by subsequent happenings or events, although of such character which would have prevented jurisdiction [53] from attaching in the first instance. They claim that the filing of the information in the Sandiganbayan was a subsequent happening or event which cannot oust the RTC of its jurisdiction. This rule has no application here for the simple reason that the RTC had no jurisdiction over the case. Jurisdiction never attached to the RTC. When the information was filed before the RTC, R.A. No. 7975 was already in effect and, under said law, jurisdiction over the case pertained to the Sandiganbayan. Neither can estoppel be successfully invoked. First, jurisdiction is determined by law, not by the [54] consent or agreement of the parties or by estoppel. As a consequence of this principle, the Court held [55] in Zamora vs. Court of Appeals that: It follows that as a rule the filing of a complaint with one court which has no jurisdiction over it does not prevent the plaintiff from filing the same complaint later with the competent court. The plaintiff is not estopped from doing so simply because it made a mistake before in the choice of the proper forum. In such a situation, the only authority the first court can exercise is to dismiss the case for lack of jurisdiction. This has to be so as a contrary conclusion would allow a party to divest the competent court of its jurisdiction, whether erroneously or even deliberately, in derogation of the law. It is true that the Court has ruled in certain cases that estoppel prevents a party from questioning the jurisdiction of the court that the party himself invoked. Estoppel, however, remains the exception [57] rather than the rule, the rule being that jurisdiction is vested by law. Even in those instances where the Court applied estoppel, the party estopped consistently invoked the jurisdiction of the court and actively participated in the proceedings, impugning such jurisdiction only when faced with an adverse decision. This is not the case here. After discovering that a similar information had earlier been filed in the RTC, respondents promptly asked the trial court to refer the case to the Sandiganbayan, which motion was followed by a motion to resolve the previous motion. There was no consistent invocation of the RTCs jurisdiction. There were no further proceedings after the filing of the information save for the motion to refer the case precisely on the ground of lack of jurisdiction, and the motion to resolve the earlier motion. Finally, the trial court had not rendered any decision, much less one adverse to petitioners. Second, petitioners cannot hold respondents in estoppel for the latter are not themselves party to the criminal action. In a criminal action, the State is the plaintiff, for the commission of a crime is an offense against the State. Thus, the complaint or information filed in court is required to be brought in the name [58] of the People of the Philippines. Even then, the doctrine of estoppel does not apply as against the [59] people in criminal prosecutions. Violations of the Anti-Graft and Corrupt Practices Act, like attempted [60] murder, is a public offense. Social and public interest demand the punishment of the offender; hence, criminal actions for public offenses can not be waived or condoned, much less barred by the rules of [61] estoppel. The filing of the information in the Sandiganbayan did not put petitioners in double jeopardy even though they had already pleaded not guilty to the information earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC not being a court of competent jurisdiction. There can be no [62] double jeopardy where the accused entered a plea in a court that had no jurisdiction. The remedy of petitioners, therefore, was not to move for the quashal of the information pending in [63] the Sandiganbayan on the ground of double jeopardy. Their remedy was to move for the quashal of the [64] information pending in the RTC on the ground oflack of jurisdiction. The contention that the filing of the information in the Sandiganbayan violated the rule against duplicitous informations is patently unmeritorious. That rule presupposes that there is one complaint or
[56]

information charging not one offense, but two or more offenses. Thus, Rule 110 of the Rules of Court states: Sec. 13. Duplicity of offense. - A complaint or information must charge but one offense, except only in those cases in which existing laws prescribed a single punishment for various offenses. Non-compliance with this rule is a ground for quashing the duplicitous complaint or information under Rule 117: Sec. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds: xxx (e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; xxx Here, petitioners are faced not with one information charging more than one offense but with more than one information charging one offense. The Court does not find the prosecution guilty of forum-shopping. Broadly speaking, forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he institutes two or more actions or proceedings grounded on [65] the same cause, on the gamble that one or the other court would make a favorable disposition. We discern no intent on the part of the State, in filing two informations in two different courts, to gamble that one or the other court would make a favorable disposition. Obviously, respondents got their signals crossed. One set of officials, after investigating a complaint filed by the Vice-Mayor of San Pascual, Batangas charging petitioners of overpricing, filed the information for violation of Section 3(e) of R.A. No. 3019 in the RTC. Another set of officials investigated another complaint from the Concerned Citizens Group accusing petitioners of, among others, overpricing the same project subject of the previous complaint. Finding probable cause, the second set of officials instituted the criminal action, charging the same offense and alleging essentially the same facts as the first, this time in the Sandiganbayan. Later learning of the procedural faux pas, respondents without undue delay asked the RTC to refer the case to the Sandiganbayan. WHEREFORE, the consolidated petitions are hereby DISMISSED.